Federal Judge Temporarily Blocks South Dakota Law Prohibiting the Advertising of Abortion Pills

A federal judge has temporarily blocked a South Dakota law that prohibits the advertising of abortion pills, finding that it violates the First Amendment.South Dakota bans abortion in most cases, with exceptions to protect “the life of the pregnant female.” Earlier this year, lawmakers passed House Bill 1274, which bans the “dispensing, distribution, sale, or advertisement of certain articles or things for purposes of an unlawful abortion.”A nonprofit dedicated to providing information about abortion pills and birth control, Mayday Health, and a former state legislator, Nancy Turbak Berry, challenged the law, arguing that it violates the First Amendment. State officials said they were trying to prevent Mayday from helping South Dakota residents access abortion pills, which they said are illegal due to the state’s abortion ban. A federal judge, Camelia Theeler, ruled on Friday that the state did not show that “Mayday advertises with the specific intent that another person engage in specific criminal conduct,” and therefore did not show that its advertising is “integral to criminal conduct.”Judge Theeler also said that South Dakota failed to show that the law served a compelling government interest and was narrowly tailored.Last December, Mayday put up ads at gas stations in South Dakota, which read, “Pregnant? Don’t want to be? Learn More at Mayday.Health.” South Dakota’s attorney general, Marty Jackley, sued Mayday over those ads and reached a settlement to remove them. Mayday argued in a hearing that banning abortion advertisements would deter Ms. Turbak Berry from wearing its hoodie that says abortion pills can be obtained in all 50 states. Preventing the messaging would limit First Amendment-protected activity. A lawyer for Mayday, Jim Leach, celebrated Judge Theeler’s ruling, saying, “Information should not be banned. And the state wants to ban information about abortion. This ruling says the state cannot ban information about abortion, no matter what you think about abortion or anything else.”Mr. Jackley said in a statement that he disagrees with the ruling and his office will provide “additional discovery and information about Mayday’s activities and representations” as the case moves forward. The law banning advertisements for abortion comes as lawmakers in red states are looking for ways to prevent abortion pills from being shipped from other states where abortion is legal. Prosecutors in Louisiana filed criminal charges against a New York-based doctor for shipping abortion medication to a Louisiana woman. And Texas’s attorney general, Ken Paxton sued a California-based doctor for shipping abortion pills to the Lone Star State. Meanwhile, Congressional Republicans urged the acting attorney general, Todd Blanche, to revisit the Justice Department’s interpretation of the Comstock Act of 1873, which prohibits the mailing of abortion pills but has rarely been enforced. In 2022, the Biden administration said that the law does not “ prohibit the mailing of certain drugs that can be used to perform abortions,” unless the sender intends for the recipient to use the drugs for an abortion. The Justice Department said at the time that there are “manifold ways” in which recipients can use drugs that are used to produce an abortion.Mr. Blanche said during his confirmation hearing last week that he would review that interpretation of the Comstock Act.

Federal Judge Temporarily Blocks South Dakota Law Prohibiting the Advertising of Abortion Pills

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