That’s not a mugshot; that’s Watertown lawyer Nancy Turbak Berry trying to avoid ending up in a mugshot at the Codington County jail come July 1 when South Dakota enacts its new law against “advertising” abortion pills or services.
Last March, the Legislature passed House Bill 1274, which will make it a Class 6 felony to “dispense, distribute, sell, or advertise… (1) an article or things designed, adapted, or intended for producing an abortion; or (2) an article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion.” HB 1274 will also allow the Attorney General to seek a court injunction against anyone he suspects would do such a thing even before that person engages such dispensing, distributing, selling, or advertising.
When the House produced this violation of the First Amendment, I wondered if it would lead Attorney General Marty Jackley to take me to court for blogging about abortion pills. Nancy Turbak Berry wonders the same thing about the sweatshirt she bought from Mayday Health stating the plain fact that mifepristone is legally available to women nationwide.
And Turbak isn’t just wondering; she’s taking the state to court to find out if she has a right to wear her sweatshirt.
In a complaint and memorandum filed by Rapid City attorney Jim Leach in federal court Friday, Turbak and Mayday Health (the New York-based organization that settled a previous lawsuit against the state and whom I wrongly accused in March of backing away from the fight for women’s rights in South Dakota, which accusation I now withdraw and apologize for!) argue that the state’s past threats to punish Mayday Health for its advertisements to South Dakota women and the rhetoric that accompanied the passage of HB 1274 show that the state will treat selling and wearing the shirt Turbak models in the above photo as a crime. Turbak declares that threat will chill her free speech:
4. Because House Bill 1274 makes it a felony for anyone to “advertise” an abortion pill, and considering the State’s actions and arguments that are described in the Complaint, I believe that wearing my sweatshirt after July 1, 2026, will subject me to criminal prosecution for a Class 6 felony, a civil penalty of up to ten thousand dollars each time I wear it, attorney fees, costs, “and any other award the court determines is appropriate,” all as set forth in HB 1274 sections 2, 3, and 4.
5. Unless this Court determines that wearing my Mayday Health sweatshirt is protected by the First Amendment, I will censor my speech by not wearing it [Nancy Turbak Berry, declaration, Mayday and Turbak Berry v. Rhoden and Jackley, 2026.05.29].
Mayday exec Leo Raisner declares that the state’s past threats “chilled Mayday’s speech and deterred Mayday from carrying out its mission” and anticipates that HB 1274 will have the same effect, as the new law makes it “more likely than ever that South Dakota will bring criminal charges against Mayday, me, and others” [Raisner declaration, 2026.05.29, p. 10].
The plaintiffs point to the Legislative record to support their claim that the Legislature passed HB 1274 with the intent to prosecute Mayday:
On March 4, Hughes told the Senate State Affairs Committee: “You’re likely familiar with the Mayday Medicine case in which ads offering abortion pills are appearing on gas pumps in South Dakota convenience stores. We believe that gas stations and restrooms should stick to offering condoms and not be used to advertise abortion pills . . . This is reckless and dangerous commercial conduct for profit that poses a threat to the health, safety and even the lives of South Dakotans. HB 1274 criminalizes this conduct and gives our Attorney General and State’s Attorney’s the tools to prosecute, obtain injunctive relief, and pursue civil remedies.” Raisner Declaration Exhibit 18 at 3-4 (emphasis added) [Attorney James D. Leach, Memorandum in Support of Motion for Preliminary Injunction, Mayday and Turbak Berry v. Rhoden and Jackley, 2029.05.29, pp. 19].
Turbak and Mayday contend that HB 1274’s ban on “advertising” violates the First Amendment:
Abortion—when it should be available, to whom, and under what circumstances—is “a profound moral question” of great public interest. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 302 (2022). Mayday and Turbak’s speech goes directly to this profound moral question. Speech on matters of public interest is at the core of the First Amendment. Such speech “occupies the highest rung on the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011), quoting Connick v. Myers, 461 U.S. 138, 145 (1983). “The most basic of [First Amendment] principles is this: ‘[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790-91 (2011), quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (alterations in original).
HB 1274 regulates speech based on its content, so it is presumptively unconstitutional. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). A law is “content based” if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). HB 1274 applies to Mayday and Turbak’s speech because of the topic discussed, abortion, and the idea or message Mayday and Turbak express: that even after Dobbs, and even in South Dakota, a woman has a choice about whether to carry a pregnancy to term [Leach, Memorandum, 2029.05.29, pp. 10–11].
In support of their own First Amendment rights, the plaintiffs invoke the U.S. Supreme Court’s 8–1 ruling in Chiles v. Salazar that blocked Colorado’s attempt to criminalize therapists’ discussion of conversion therapy with minors:
In Chiles v. Salazar, 146 S.Ct. 1010 (2026), 2026 U.S. Lexis 1565, Colorado banned licensed counselors from talking with their clients about “conversion therapy,” meaning talking about changing their sexual orientation. Plaintiff objected to the law as applied to her. The Court struck it down as unconstitutional viewpoint discrimination. “The First Amendment envisions the United States as a rich and complex place where all enjoy the freedom to think as you will and to speak as you think.” 2026 U.S. Lexis 1565 * 14-15. “‘Viewpoint discrimination,’ as we have put it, represents ‘an egregious form’ of content regulation, and governments in this country must nearly always ‘abstain’ from it.” 2026 U.S. Lexis 1565 * 16.
Colorado’s law was viewpoint discrimination because it “trains directly on the content of [plaintiff’s] speech and permits her to express some viewpoints but not others.” 2026 U.S. Lexis 1565 * 29. HB 1274 as applied to Mayday and Turbak is viewpoint discrimination, because it trains directly on the content of their speech (abortion) and permits them to express the State’s viewpoint (e.g. that abortion is dangerous and morally indefensible) but not their viewpoint (that a pregnant woman should have access to information that allows her to consider her options, including abortion, and that abortion pills can be a safe, reasonable choice).
In short, “the people lose whenever the government transforms prevailing opinion into enforced conformity.” 2026 U.S. Lexis 1565 * 36-37 (cleaned up). The First Amendment is “a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.” 2026 U.S. Lexis 1565 * 37. Just as Colorado thought that Chiles should not be allowed to speak about conversion therapy, South Dakota thinks that Mayday and Turbak should not be allowed to speak about abortion [Leach, Memorandum, 2026.05.29, pp. 12–13].
If the First Amendment protects our freedom from liberals trying to throw people in jail for telling gays they can turn straight, it must also protect our freedom from conservatives trying to throw people in jail for telling women they can choose to end their pregnancies.
Turbak and Mayday ask the court to enjoin the state from enforcing or threatening to enforce HB 1274 against them and to declare that HB 1274’s ban on “advertising”—not the whole law, just the part about advertising—is unconstitutional.
Mayday also asks the court to declare trying to hold Mayday responsible for the content on third-party websites to which it provides links on its website violates the Section 230 of the federal Communications Decency Act.
While public officials often decline to discuss ongoing litigation, Attorney General and, perhaps more relevantly, Republican candidate for Congress Marty Jackley quickly issued a press release declaring his pro-life chops and mischaracterizing this new lawsuit and its predecessor:
This session the South Dakota Legislature, in HB 1274, approved restrictions on abortion drugs mailed or distributed in South Dakota.
Attorney General Marty Jackley issued this statement after Mayday Health filed a new lawsuit regarding South Dakota’s law restricting the distribution of abortion pills in the state:
“The U.S. Supreme Court has made it clear that States have the right to protect life. As with Mayday’s previous unsuccessful lawsuit, I will defend innocent life” [Attorney General Marty Jackley, press release, 2026.05.29].
Marty’s misrepresentations:
- Jackley doesn’t mention local lawyer Nancy Turbak Berry; he wants to portray this lawsuit solely as an out-of-state organization threatening the South Dakota way of life.
- Turbak and Mayday aren’t challenging the restriction on distributing abortion pills in the state. They are challenging HB 1274’s restrictions on discussing abortion pills and other means of terminating pregnancies. Jackley needs his voters to hear “I love fetuses!” not “I hate free speech!”
- Mayday’s previous lawsuit wasn’t entirely “unsuccessful”. The federal court declined on jurisdictional grounds to intervene in state-level litigation, but before Mayday and the state settled that case, federal Judge Katherine Polk Failla said the First Amendment protects Mayday’s speech (and the plaintiffs quote Judge Failla to support their new lawsuit). In her February 11 oral ruling, Judge Failla peered over her jurisdictional restraint at South Dakota and said, “I trust that the South Dakota court will get it right“… and by “it”, she meant the First Amendment and Jackley’s misapplication of laws relating to commercial speech.
Jackley will need to speak more accurately about the nature of this lawsuit to Judge Camela C. Theeler, who will hear the case. HB 1274 takes effect July 1, so let’s hope for fast action to keep Turbak in her sweatshirt and out of jail.