Appeals court denies South Dakota’s defense of ban on abortion pill advertising

An appeals court shut down an attempt from South Dakota’s attorney general and governor to overturn a decision that blocks enforcement of a law that criminalizes abortion pill advertising in the state.

Gov. Larry Rhoden and Attorney General Marty Jackley, both Republicans, filed the appeal in August after a lower court blocked enforcement of the law while a lawsuit over the law’s constitutionality played out.

Nancy Turbak Berry, a Democratic former state legislator from Watertown, and New York-based nonprofit Mayday Health filed a lawsuit in May against Rhoden and Jackley. Rhoden signed the legislation into law in March after lawmakers approved it, but it wasn’t scheduled to take effect until July 1.

South Dakota already has a near-total ban on abortion, except when it’s necessary “to preserve the life of the pregnant female.”

The new law prohibits the dispensing, distribution and advertising of abortion pills and other abortion-related items, and makes violations punishable by prison time and fines.

Governor and attorney general appeal to defend South Dakota’s ban on abortion-pill advertising

In mid-July, a federal judge in Rapid City ruled the state could not enforce the new law while the lawsuit played out. Rhoden and Jackley sought to overturn that decision.

“Mayday’s activities are an irreparable threat to unborn life and maternal health,” Jackley wrote in his appeal.

The 8th Circuit Court denied that bid, which means the state cannot enforce the law while a case of whether or not the law is constitutional plays out.

Mayday Health and Turbak Berry say the law illegally restricts Turbak Berry’s free speech. As an example, the lawsuit says the prohibition on advertising would prevent her from wearing a sweatshirt sold by Mayday. The sweatshirt says abortion pills can be obtained in all 50 states and encourages people to learn more on Mayday’s website.

“Unless this court grants relief, Turbak will be deterred from wearing the sweatshirt,” and thereby deterred from engaging in First Amendment-protected speech, the lawsuit says.

U.S. District Judge Camela Theeler wrote in her July ruling that the state’s lawyers 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.”