Mayday Health Sues to Stop Jackley’s Intimidation Campaign Against Facts About Abortion

New York-based non-profit Mayday Health is suing Attorney General Marty Jackley in federal court over the state’s effort to block their promotion of abortion rights in South Dakota:

Jackley asked a South Dakota judge last month to stop the campaign, which includes gas-pump placards asking “Pregnant? Don’t want to be?” and provides a link to Mayday Health’s website. The nonprofit educates people about the safety and effectiveness of abortion pills. It began its ad campaign in early December, and Jackley sent the group a cease-and-desist letter days later.

In the new federal suit, filed in the Southern District of New York, Mayday claims Jackley’s actions are unconstitutional because the nonprofit’s website and advertising materials are protected.

…Mayday’s lawsuit says Jackley “may not punish Mayday for publishing truthful information on a public issue” such as “ information about legal abortion services in jurisdictions that have made abortion illegal” [Meghan O’Brien, “Dueling Federal and State Lawsuits Arise in Dispute over Abortion-Rights Ads in South Dakota,” South Dakota Searchlight, 2026.01.07].

Mayday Health’s federal complaint rightly ridicules the “investigation” Jackley’s office conducted to support its claim that Mayday is violating South Dakota’s deceptive trade practices and consumer protection law:

25. The Attorney General accepted the Governor’s charge and commenced a sham investigation into Mayday. Unable to investigate Mayday under the “pro-life” laws the Governor cited because Mayday does not provide abortions, the Attorney General directed his office to investigate Mayday for possible violations of the South Dakota Deceptive Trade Practices and Consumer Protection Act, SDCL § 37-24-6. Attached as Exhibit D is the affidavit of Kayla Klemann, the official who conducted the investigation.

26. Klemann’s “investigation” apparently involved reading Mayday’s website, and reviewing some of the third-party websites to which Mayday’s website links. The investigation did not find that any consumer had been misled by Mayday’s website, or by the gas station signs publicizing it. See generally Ex. D. Klemann notes receiving only one complaint from one business, Cowboy Country Stores, that objected to the publication of Mayday’s “abortion media campaign” on leased signs in front of its business—an objection to Mayday’s expressed point of view, and a contractual matter for Cowboy Country Stores to take up with its media leasing agent, not actionable evidence of consumer deception or confusion that would normally warrant State intervention. Id. at ¶ 7.

27. The absence of any evidence of consumer harm is, of course, unsurprising: no one in South Dakota or anywhere else has been or could be deceived by the literally true public health information Mayday publishes and links to on its website, much less by its “Pregnant? Don’t want to be?” placards that simply invite people to “learn more.” The Attorney General’s sham investigation makes plain what was obvious from the staged press releases calling for its commencement: that the task was to “put[] investigators to work” “searching the law books” “to pin some offense” on Mayday in retaliation for its speech, not to undertake a normal good faith investigation following up on any real suspicion of wrongdoing. Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting) (explaining that when “the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense” it presents “the greatest danger of abuse”) (quoting R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940) [Mayday Health, complaint, Mayday Health v. Jackley, U.S. District Court of New York, Southern District, filed 2026.01.06].

Mayday attributes to Jackley some legal malpractice of Ravnsborgian proportion:

31. Disregarding Mayday’s response, on December 22, 2025, the Attorney General filed a motion in South Dakota state court purporting to seek an injunction against Mayday and the company that placed Mayday’s signs at gas stations in South Dakota. The motion is attached as Exhibit G. The Attorney General did not properly serve the motion on Mayday, and indeed did not even file or serve any complaint and summons on Mayday to commence any kind of proceeding against Mayday at all. Mayday only learned about the motion from news reports and social media posts that the Attorney General and Governor Rhoden posted linking to a press release the Attorney General issued announcing the motion. Service still has not been effected, and there is still no complaint or summons on file, so there is accordingly no actual ongoing proceeding against Mayday at the time of this filing [Mayday Health, 2026.01.06].

…and a failure to demonstrate any wrongdoing by Mayday:

33. The asserted deceptive trade practice violations cited to support the requested injunction are not just unmerited but objectively frivolous for the reasons Mayday pointed out in its response to the Attorney General’s original demand. Were the Attorney General to initiate actual proceedings to pursue these claim, his claims would be barred by the First Amendment and—to the extent they sought to punish Mayday for linking to allegedly objectionable third-party websites—Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1). They would also fail as a matter of state law, since Mayday has engaged in no commercial speech regulable by the South Dakota deceptive trade practices statute.

34. In fact, even if the public health information Mayday itself publishes were commercial and regulable, the Attorney General could not possibly or reasonably expect to prevail in any action against Mayday because the targeted statements—(1) that third-party organizations offer abortion pills; (2) that these third-parties say they will “ship to all 50 states”; (3) that the FDA has approved the pills for shipment in all 50 states; and (4) that the FDA has approved abortion pills as safe—are all literally true. Even the Attorney General himself issued a press release acknowledging that federal rules permit access to abortion pills by mail. See Office of the South Dakota Attorney General, Attorney General Jackley Confirms SCOTUS Abortion Pill Ruling Does Not Impact State Abortion Law (June 13, 2024), https://tinyurl.com/mspmuyh6 [Mayday Health, 2026.01.06].

Mayday Health is not seeking the overturning of any South Dakota law, since they aren’t violating any South Dakota law. The only unconstitutional action here is Jackley’s unsupportable intimidation campaign against Mayday for helping South Dakotans find facts about abortion. Mayday Health asks the federal court to tell Jackley to get off their backs and pay their lawyer bills.