A free speech battle is brewing in South Dakota over whether or not a New York-based nonprofit can advertise abortion pills in a state where the procedure is banned. 

The legal battle began last month, when a nonprofit that provides information about abortion pills, Mayday Health, placed ads promoting abortion pills at gas stations in South Dakota. The ads read, “Pregnant? Don’t want to be?” and provide a link to Mayday Health’s website, which features links to purchase abortion pills.

On Friday, a South Dakota judge will hear arguments on whether to grant a preliminary or permanent injunction to stop Mayday Health’s ad campaign. 

State officials in South Dakota, where abortion is prohibited except when the life of the mother is at risk, vowed to investigate the ads over concerns that they violate the state’s abortion law. They argue that because abortion is prohibited in the state, it should be illegal to promote abortion even if the procedure would be performed in another state.

In December, South Dakota’s attorney general, Marty Jackley, sent a cease and desist letter to Mayday, arguing that its ads “are targeting women — including teenagers — encouraging them to take these pills while misleading them about the potential physical risks.”

Mr. Jackley’s complaint also takes issue with a portion of Mayday’s website that says “research shows that hundreds of thousands of people have received and used pills by mail over the past few years with no legal problems.” The attorney general says Mayday should instead tell those seeking abortion pills that it is “illegal to mail abortion-inducing drugs into the state of South Dakota.”

The executive director of Mayday, Liv Raisner, said in an Instagram post in December, “We’re not taking the signs down.”

“It’s First Amendment-protected free speech, and information is not illegal,” the post added. 

While South Dakota officials are trying to stop Mayday from promoting abortion pills in the state, the organization is suing South Dakota in federal court. 

In a federal lawsuit filed on January 6, Mayday asked the United States District Court for the Southern District of New York to “prevent [Mr. Jackley] from punishing” the organization for its ad campaign. 

“The Attorney General — who disagrees with the lawful choices people may make with the information Mayday publishes, as well as Mayday’s conviction that access to abortion is a fundamental human right — has demanded that Mayday desist from publishing this information, threatening penalties unless Mayday self-censors,” Mayday’s complaint states. “But the First Amendment prohibits the Attorney General from retaliating against Mayday and restraining its speech because of hostility toward Mayday, the information Mayday publishes, and the beliefs that impel Mayday to publish it.”

The ACLU defended Mayday in a statement, saying, “Despite the state’s near-total ban on abortion, the governor can’t prevent information about abortion from being shared in South Dakota.”

The advocacy director of the ACLU of South Dakota, Samantha Chapman, said, “This targeted attack against information about abortion violates our First Amendment right to share and receive information and puts a target on any other organization or individual who dares to share information that the governor disfavors.”

The ACLU pointed to the Supreme Court’s Bigelow v. Virginia decision from 1975, which found that Virginia infringed on the First Amendment by prohibiting the people from promoting abortion. 

Mayday has been running similar ad campaigns in West Virginia and Kentucky.