South Dakota federal judge sides with abortion information provider

(CN) — A federal judge in South Dakota on Friday stopped the state from enforcing a new anti-abortion law against a provider of abortion information.

Passed during the 2026 legislative session, House Bill 1274 prohibits the advertising and distribution of items related to the procedure.

In late May, the nonprofit Mayday Health sued South Dakota’s governor and attorney general in federal court to prevent them from enforcing the new measure, which was signed by Republican Governor Larry Rhoden on March 20 and went into effect July 1. South Dakota law already bans abortions with few exceptions.

The organization says the new law criminalizes its work, chills lawful speech and credibly threatens it with future prosecution for engaging in First Amendment-protected activity.

The nonprofit also argued that under Section 230 of the Communications Decency Act, it could not be held liable for links to third-party websites.

Mayday sought a preliminary injunction to prevent the state from enforcing or threatening to enforce the statute. It asked the court to find the law unconstitutional, both as applied to plaintiffs and in its general prohibition on abortion advertising.

The motion for preliminary injunction, along with other issues, were argued in front of U.S. District Judge Camela C. Theeler in Rapid City earlier this month.

In an order on pending motions filed Friday, the Joe Biden appointee granted plaintiff’s request for a preliminary injunction. She said the South Dakota law failed the strict scrutiny standard — applied in cases where laws restrict speech —and that state officials had in fact not even tried to satisfy it.

“The record is devoid of evidence suggesting that the standard could be met,” Theeler wrote.

Defendants argued abortion pills were not safe and that Mayday provided misleading information. But the judge said the nonprofit presented evidence that abortion pills delivered the desired result, along with statistical information pointing to minimal adverse events.

“Granting a preliminary injunction to enforce the plaintiffs’ First Amendment rights outweighs any potential harm to the defendants,” Theeler wrote. “The public interest is served by issuing an injunction because the public has a compelling interest in protecting its First Amendment rights.”

The judge also denied defendants’ motion to dismiss and motion for a spoilation remedy.

In her 43-page order, Theeler did not appear to address plaintiff’s request for a judgement that the law was unconstitutional on its face.

Jim Leach, a Rapid City attorney representing the plaintiffs, said the most important issue — free speech — was nonetheless addressed.

“I’m just really pleased,” he said. “The judge got everything right. What’s really important is the First Amendment is vindicated."

Leach said the state could not show there was any agreement to do anything illegal.

“They were saying, ‘These people were doing more than talking about abortion.’ We are saying, ‘No they aren’t. They are [sharing] information,’” Leach said. “And the judge agreed.”

In a statement, the South Dakota attorney general’s office said defendants “respectfully disagree” with the ruling.

“The case on the permanent injunction will still be tried with additional discovery and information about Mayday’s activities and representations,” the office said. “Protecting and defending innocent life is and remains important to our Legislature, governor, attorney general and citizens.”

The lawsuit marks the latest clash between South Dakota and Mayday Health, an organization formed after the Supreme Court’s 2022 ruling in Dobbs v. Jackson, which ended the constitutional right to abortion access and returned the issue to the states.

Last year, South Dakota sued Mayday Health over billboards placed at gas stations that read: “PREGNANT? DON’T WANT TO BE?”

That complaint followed a cease and desist letter sent in December by Republican South Dakota Attorney General Marty Jackley. Jackley warned the nonprofit that the state would sue if the it did not stop what he described as deceptive advertising of the sale of abortion pills.

Mayday responded with its own free speech lawsuit in federal court in New York. The parties settled their competing lawsuits in March, with Mayday agreeing to stop placing the billboards at gas stations.

In a statement, Leo Raisner, Mayday’s executive director, lauded Friday’s decision.

“At the hearing, I affirmed on the witness stand that Mayday doesn’t advocate for abortion. We don’t ship or sell or prescribe pills. We share information and list legitimate providers,” he said. “That’s not illegal. That’s protected by the First Amendment.”

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