HB 1274 Bans Telling Women About Abortion Options

House State Affairs may have taken the prohibition on selling abortion-related products out of House Bill 1257, but the anti-abortion fanatics are pushing a ban on abortion-related sales and speech in House Bill 1274, which scratches Governor Larry Rhoden’s and Attorney General Marty Jackley’s itch to rescind the First Amendment and stop people from even talking about abortion.

As approved by the House last week, HB 1274 makes it a Class 6 felony—just like abortion itself—to “dispense, distribute, sell, or advertise… for purposes of an unlawful abortion” anything “designed, adapted, or intended for producing an abortion” or anything “that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion.” HB 1274 also lets the Attorney General pull up to $10,000 in civil penalty out of an abortion-promoting dispenser, distributor, seller, or advertiser.

Advertise… let’s pin that word down. South Dakota law defines advertising in the Trade Regulation title as communications “used in connection with an offer or sale of any business opportunity” [SDCL 37-25A-1]. But other definitions pop up:

• Under Food and Drugs: Animal Remedies, SDCL 39-18-1 defines advertisement as “all representations, other than those on the label, disseminated in any manner or by any means, relating to animal remedies….”
• SDCL Chapter 31-29, Highways and Bridges: Highway Beautification and Regulation of Advertising, limits all sorts of “outdoor advertising” and “advertising signs” that obstruct drivers’ vision or distract their attention. Roadside signs encouraging people to seek medical information or vote a certain way are subject to the same restrictions as billboards for businesses like Wal-Mart and Wall Drug.
• SDCL 1-25A-1 authorizes public agencies to purchase “radio and television advertising time to broadcast any announcement found to be in the public interest.” This law suggests that “advertising” may have no commercial component; it may simply inform the public of things the advertiser thinks they should know.

Mayday Health, whose promotion of abortion information at South Dakota gas stations in December prompted HB 1274 and a lawsuit, and A.G. Jackley disagree on the legality of their ads, but they both call the gas station signs advertising. Jackley and the bill sponsors clearly intend to use HB 1274 to attack Mayday and anyone else who would buy signs, billboards, air time, or online ads to help South Dakota women learn about options for terminating their pregnancies. Advertising appears to include all sorts of public speech, commercial or otherwise.

So what about blogging, tweeting, and other forms of online communication we believers in women’s equality might use to let pregnant South Dakota women know they have options beyond carrying their pregnancies to term? If I write a blog post come July 1 saying, “Mifepristone and misoprostol are safe and effective drugs, and you can get them in Minneapolis“—or if I say that now and leave this post up after HB 1274 takes effect— HB 1274 appears to let Marty Jackley slap me with a felony charge for advertising the means for South Dakota women to evade the long (reaching across state borders, Sir Jackley of Wayfair will argue) arm of South Dakota’s law.

For extra badness, HB 1274 gives A.G. Jackley and his successor (Lance Russell? Austin Hoffman? Sara Frankenstein? Amber Hulse?) a curious power of prior restraint:

If the attorney general has reason to believe that a person is engaging in, has engaged in, or is about to engage in a violation of section 1 of this Act, the attorney general may bring an action in the name of the state against the person to restrain the person by temporary or permanent injunction.

An action under this section may be brought in the circuit court for the county in which the alleged violator resides or has a place of business, or in the circuit court for Hughes County, South Dakota. The court may issue a temporary or permanent injunction to restrain and prevent any violation of section 1 of this Act [2026 HB 1274, excerpt from Section 3, as amended by House State Affairs, 2026.02.20].

So imagine Marty sitting in his big chair after HB 1274 passes. July 1 comes, and he thinks, “Oh, that darn Cory, he’s probably going to write some article about the death of free speech and test me by repeating his darn facts about abortion pills.” Before I even hit the keyboard, Attorney General Jackley can file papers at the Hughes County Courthouse and get Judge Klinger to issue an injunction against my anticipated blogging about mifepristone.

It’s bad enough that Jackley and other anti-abortion activists are using the state to control women and their medical decisions. Now they want to use HB 1274 to control what the rest of us say to South Dakota women about their medical decisions.