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

South Dakota Gov. Larry Rhoden and Attorney General Marty Jackley, both Republicans, filed an appeal Monday in defense of a new law that criminalizes abortion-pill advertising in the state.

They’re seeking to set aside a lower court’s order blocking enforcement of the law while the litigation plays out.

Nancy Turbak Berry, who formerly served as a Democratic 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.

In mid-July, a federal judge in Rapid City ruled the state could not enforce the new law while the lawsuit played out. On Monday, Jackley and Rhoden appealed that decision to the U.S. Eighth Circuit Court of Appeals.

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

Judge temporarily blocks South Dakota’s abortion-pill advertising ban as lawsuit continues

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

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.”

In court documents filed Monday, Jackley and Rhoden criticized Theeler’s ruling and Mayday’s advertising, which formerly included placards at gas station pumps in the state.

“The Court has legalized the solicitation and aiding and abetting of an illegal drug and erroneously broadened the scope of the term advertising,” the state said in its court filing, adding that the ruling “could just as easily protect the solicitation and aiding and abetting of online methamphetamine sales by groups who claim to simply ‘provide information’ about methamphetamine and offer consumers the ‘choice’ to commit an illegal act.”