Federal Judge Blocks South Dakota Abortion Pill Advertising Ban, Citing First Amendment Concerns
Northeast Radio SD News – South Dakota - A federal judge has issued a preliminary injunction preventing South Dakota officials from enforcing a new state law that criminalizes the advertising of abortion-inducing drugs against a national reproductive health organization and a former state lawmaker.
In a 43-page order issued Friday, July 17, U.S. District Judge Camela C. Theeler ruled that New York-based nonprofit Mayday Health and former Democratic state legislator Nancy Turbak Berry are likely to succeed on the merits of their First Amendment lawsuit challenging South Dakota Codified Law (SDCL) § 22-17-5.3.
The preliminary injunction temporarily bars Republican Gov. Larry Rhoden and Attorney General Marty Jackley from enforcing or threatening to enforce the advertising ban against the plaintiffs while the case proceeds on its merits.
First Amendment and Free Speech Protections
The law, originally introduced as House Bill 1274 during the 2026 legislative session, makes it a Class 6 felony to knowingly dispense, distribute, sell, or advertise any article, drug, or medicine intended or calculated to produce an unlawful abortion. Violations carry up to two years in prison, a $4,000 criminal fine, and potential civil penalties of up to $10,000 per violation.
South Dakota state officials argued that the statute regulates criminal conduct rather than protected expression, asserting that Mayday Health’s online messaging and links to telehealth providers constitute speech integral to illegal activity or commercial advertising.
Judge Theeler rejected those arguments, concluding that the law directly regulates speech based on its communicative content—abortion—and is therefore subject to strict constitutional scrutiny.
“Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” Judge Theeler wrote, citing U.S. Supreme Court precedent. “The Defendants have not shown at this stage of the litigation that the Plaintiffs’ intended speech is commercial speech, conduct rather than speech, or speech integrally related to unlawful conduct.”
The court noted that Mayday Health operates as an educational 501(c)(3) nonprofit that provides free public information regarding reproductive healthcare options and does not sell, ship, handle, or financially profit from the sale of abortion pills.
Standing and the “Mayday Sweatshirt”
The state had sought to dismiss Turbak Berry from the lawsuit, contending she lacked standing because wearing clothing advocating Mayday’s message did not constitute commercial advertising.
Turbak Berry testified at a June 23 evidentiary hearing that she feared felony prosecution under the law for wearing a cream crewneck sweatshirt sold by Mayday that reads:
“They don’t want you to know this: You can still get ABORTION PILLS in all 50 states. Learn more at Mayday.Health.”
The court ruled that Turbak Berry established a credible threat of prosecution and self-censorship, noting that the text of SDCL § 22-17-5.3 broadly prohibits “any person” from advertising for unlawful abortions without distinguishing between commercial entities and individual advocates.
Chatbot Evidence and State Motions Denied
In addition to granting the preliminary injunction, Judge Theeler denied two motions filed by the state:
· Motion to Dismiss: The state’s challenge to Turbak Berry’s standing was officially denied.
· Spoliation Motion: The state had accused Mayday Health of intentional evidence spoliation after Mayday removed an interactive chatbot named “Charley” from its website shortly before the June evidentiary hearing.
Mayday co-founder Leo Raisner testified that the chatbot was removed because its language went beyond the organization’s core mission and would not be hosted in the future.
Judge Theeler found Raisner’s testimony credible, ruling that the removal was not done to suppress evidence and that the state suffered no legal prejudice since investigative records regarding the chatbot were admitted into the hearing record.
Reacting to the Ruling
Following the court’s decision, Turbak Berry praised the ruling on social media, emphasizing the constitutional protections surrounding public information.
“The Constitution still matters; the First Amendment still applies — even here in SD,” Turbak Berry stated in a public post. “A Federal District Judge has issued an injunction prohibiting South Dakota from enforcing still another unconstitutional law our extreme Legislature adopted in its anti-abortion frenzy. The State may not like abortion pills, but it may not prevent us from providing South Dakota women information about them.”
Turbak Berry also expressed gratitude toward her attorney, Rapid City lawyer Jim Leach, who represents the plaintiffs in the federal lawsuit.
South Dakota Attorney General Marty Jackley issued this statement on the U.S. District Court’s preliminary injunction in the Mayday Health lawsuit. Mayday’s lawsuit challenges a South Dakota law prohibiting advertising for abortion pills in South Dakota, and advertising on behalf of out-of-state suppliers who will ship abortion pills to South Dakota in violation of state law.
“We have received the federal district court’s preliminary injunction during the ongoing proceedings. While we respectfully disagree, the case on the permanent injunction will still be tried with additional discovery and information about Mayday’s activities and representations. Protecting and defending innocent life is and remains important to our Legislature, Governor, Attorney General and citizens.”
The preliminary injunction remains in effect until the court holds a full trial on the merits of the lawsuit.
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