Turbak, Mayday Health Win Injunction Against South Dakota’s Ban on Talking About Abortion Pills

The state of South Dakota lost yet another important First Amendment case Friday, as a federal judge told the state it can’t punish people for talking about abortion pills.

This year in Pierre, the Legislature passed House Bill 1274—enacted as of July 1 as SDCL 22-17-5.3, -5.4, and 5.5, plus an amendment to South Dakota’s abortion ban in SDCL 22-17-5.1—to respond to Governor Larry Rhoden’s and Attorney General Marty Jackley’s desire to punish New York non-profit Mayday Health for putting up signs at gas stations last winter promoting reproductive choice. The new law makes it a Class 6 felony to “dispense, distribute, sell, or advertise” anything that could help a woman abort her pregnancy. It also empowered the Attorney General to seek a court injunction against anyone he thinks might even be thinking of advertising such horrors.

I smelled gross violation of the First Amendment in that law. So did Mayday Health, Watertown lawyer Nancy Turbak Berry, and their attorney, the redoubtable Jim Leach of Rapid City, who sued the state in federal court at the end of May to block Jackley from prosecuting Turbak for wearing her Mayday sweatshirt, which reads, “They don’t want you to know this: You can still get ABORTION PILLS in all 50 states. Learn more at mayday.health.” Attorney General and Congressional candidate Jackley himself went to court June 23 to argue the case before U.S. District Judge Camela C. Theeler.

Jackley didn’t do any better at defending this law than his deputies have done against Leach in previous cases where the state has trampled the First Amendment. On Friday, Judge Theeler found the state lost on pretty much every argument it made.

The state tried to boot Turbak from the suit by saying she doesn’t have standing. Jackley argued that if she wears her sweatshirt around town, Turbak would simply be advocating and not “advertising”—i.e., “attracting customers” or “recommending to another person for [her] acquisition” abortion pills. But Judge Theeler noted that Turbak’s shirt has essentially the same message as the Mayday placards that the state insisted are subject to the new speech ban. “And, here, SDCL § 22-17-5.3 makes no distinction between advertisements by nonprofits like Mayday or by persons like Turbak. Rather, the statute makes it a crime for any person to advertise for purposes of an unlawful abortion” [Theeler, ruling, 2026.07.17, p. 19].

The state also tried to deny Mayday’s standing to bring the case, based on Mayday’s March settlement or the state’s litigation against its gas station signs. Mayday promised, Jackley said, not to engage in any illegal activity, so obviously they aren’t going to do things that would violate the new abortion-advertising ban. Judge Theeler said agreeing not to violate certain laws does not prevent Mayday from asserting its First Amendment rights, as it is doing in this legal challenge to South Dakota’s new law.

With standing established for both plaintiffs, Judge Theeler went on to affirm their arguments and nuke the state’s.

The state contended that the state has more leeway to regulate the plaintiffs’ speech because it is commercial speech. Judge Theeler affirmed that Turbak and Mayday are engaging in non-commercial speech:

The Defendants have not shown that Mayday’s speech proposes a commercial transaction or that the speech is related solely to Mayday’s or its audience’s economic interests.

…[A]t this stage of the litigation, the Defendants have not shown that Mayday’s advertisement is commercial speech.… While Mayday links abortion pill merchant websites on its own website—thereby referring to a specific third-party that provides a product—Mayday does not sell, handle, or distribute abortion pills for these third-party providers. This weighs against finding the speech commercial.… Further, there is no evidence that Mayday holds an economic motivation for its advertisements. Rather, the evidence and testimony establish that Mayday is a nonprofit organization expressing a moral belief and providing information for free.

Finally, although Mayday fundraises and sells merchandise on its website to further its nonprofit mission, there is no evidence that Mayday receives payment for linking the websites for abortion pill merchants on its own website.… Similarly, the Defendants have not established that Mayday’s advertisements are directly related to its ability to fundraise and thus operate [Theeler, 2026.07.17, pp. 26–28].

In black-is-white rhetoric, the state argued that the new law “regulates conduct—not protected speech”. Judge Theeler said no, the law targets advertising, “the dissemination of information based on its content”—i.e., speech.

In a faintly more rational argument, Jackley contended that the First Amendment doesn’t protect speech that is “integral to criminal conduct”. But Judge Theeler said Mayday and Turbak are just sharing information, not facilitating actual crimes:

Mayday is not an abortion pill merchant and it does not sell, dispense, or distribute abortion pills. Further, while Mayday advertises that abortion pills can be obtained in all 50 states and provides links on its website to the websites for abortion pill merchants, Mayday does not facilitate the transfer of or offer to transfer abortion pills into South Dakota. Nor does the evidence establish that Mayday’s desired speech is intended to produce unlawful abortions or incite imminent lawless action. Rather, Mayday’s evidence at this juncture establishes that it spreads what it believes to be accurate information about abortion pills, including links to abortion pill merchants, with the intent of informing people that they have choices and to provide education about those choices.

…Based on the evidence presented and the Court’s credibility assessment of Raisner’s testimony, the Defendants have not shown that Mayday advertises with the specific intent that another person engage in specific criminal conduct and thus have not shown that Mayday’s advertising is integral to criminal conduct. Also, the Defendants have not shown that either Mayday’s physical media or Turbak’s Mayday sweatshirt (which both contain messages with less detail than Mayday’s website) advertise with the specific intent to promote or facilitate the commission of a crime. The speech by Mayday and Turbak in this regard makes no offer to provide unlawful material and does not advocate to incite or promote imminent, unlawful action [Theeler, 2026.07.17, pp. 33–34, 38].

Judge Theeler also rejected the state’s bushwah about abortion pills being unsafe:

Importantly, although the Defendants argue that abortion pills are not safe and the information provided by Mayday on its website is misleading, Mayday presented evidence supporting the efficacy of abortion pills and statistical information denoting minimal adverse events [Theeler, 2026.07.17, p. 40].

Attorney General Jackley’s not a bad lawyer, but the Legislature gave him a bad law to defend. Jackley promised Friday to continue defending HB 1274 “with additional discovery and information about Mayday’s activities and representations,” but so far, he hasn’t found any legal toehold to make Judge Theeler think it’s o.k. for South Dakota violate the First Amendment.

Meanwhile, Turbak, whose Facebook avatar is a photo of Pope Leo, posted this response to the favorable ruling:

The Constitution still matters; the First Amendment still applies — even here in SD. A Federal District Judge has issued an injunction prohibiting South Dakota from enforcing still another unconstitutional law our extreme Legislature adopted in its anti-abortion frenzy. The State may not like abortion pills, but it may not prevent us from providing South Dakota women information about them. Grateful for the fine services of my lawyer, Jim Leach [Nancy Turbak Berry, FB, 2026.07.17].