MayDay Health sues South Dakota over new law on abortion-pill advertising

The pro-abortion group Mayday Health has initiated a federal lawsuit against South Dakota Governor Larry Rhoden and Attorney General Marty Jackley concerning House Bill 1274, which states that no individual may "knowingly provide, distribute, sell, or promote any item intended or adapted to induce an abortion." Mayday Health has a history of advertising the abortion pill in the state, which has laws protecting most preborn children from abortion.

Key Takeaways:

• Mayday Health has filed a lawsuit to challenge South Dakota's new law prohibiting the promotion of items "intended or adapted to induce an abortion."

• The lawsuit seeks a preliminary injunction from a federal judge to prevent the state from enforcing the law.

• Mayday Health had been advertising the abortion pill at gas stations in the state, despite South Dakota's law protecting most preborn children from abortion.

The Details:

South Dakota is witnessing a new legal tussle over abortion-pill marketing, and the case emphasizes a rising clash between pro-life lawmakers and abortion advocates over whether “advertising” abortion drugs can be classified as protected speech. MayDay Health had been advertising abortion pills, including on gas station pumps, in the state following the enactment of the state's pro-life law in 2022. That law only allows abortion when the mother's life is at risk. A legal battle over the advertisements ensued, with a settlement resulting.

In March, Gov. Rhoden signed a new law prohibiting not just the dispensing, distribution, and sale of abortion drugs. The new legislation prohibits the dispensing, distribution, sale, or advertisement of certain articles or things for purposes of an unlawful abortion..." The restriction also extends to any article, instrument, substance, drug, medication, or other means used for that purpose. Breaches of the law would constitute felony offenses, carrying penalties of up to two years’ imprisonment and fines of up to $4,000. Besides, the law would empower the state attorney general to seek civil penalties of $10,000 for each violation.

On May 29, the pro-abortion group Mayday Health, together with Watertown-based attorney Nancy Turbak Berry, initiated a federal lawsuit against South Dakota Governor Larry Rhoden and Attorney General Marty Jackley concerning that new law, which is scheduled to take effect on July 1. 

Notably, the lawsuit alleges that House Bill 1274’s ban on “advertising” was inherently unconstitutional, claiming that it limits or deters a considerable amount of protected speech.

Also, the lawsuit seeks a preliminary injunction from a federal judge to prevent the state from enforcing the law. Rapid City attorney Jim Leach filed the case on behalf of Mayday Health and Nancy Turbak Berry, while she served as a state legislator, according to AOL. 

In response to this new lawsuit, Gov. Rhoden  posted on X:

If Mayday Health and the abortion lobby want to sue us for defending unborn life, bring it on.

Similarly, State Attorney General Marty Jackley penned: 

The U.S. Supreme Court has made it clear that states have the right to protect life,” Jackley said. “As with Mayday’s previous unsuccessful lawsuit, I will defend innocent life.

The Backstory:

Mayday was previously embroiled in a legal dispute with Jackley over the advertisements it installed at gas stations across the state, which read, “Pregnant? Don’t want to be?” and directed viewers to its website for information on procuring abortion pills. In parallel state and federal cases, Jackley lambasted the pro-abortion group for contravening South Dakota’s pro-life laws, while Mayday alleged that its ads were protected by the First Amendment. The matter was eventually settled through a deal that required Mayday to remove the advertisements.

The Bottom Line:

According to the Guttmacher Institute, the abortion pill comprised 63% of all abortions in the United States in 2023. The drugs most commonly used for these procedures—mifepristone and misoprostol—are also encapsulated on the World Health Organization’s list of essential medicines.

If South Dakota’s law emerges unscathed after this lawsuit, other pro-life states may enact more robust restrictions on abortion-pill marketing, particularly in the states where preborn lives are protected to varying degrees. By doing so, pro-abortion campaigns that try to regularize chemical abortion as a consumer product can hopefully be reduced.