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

A new South Dakota law that criminalizes the advertising of abortion pills cannot be enforced while a lawsuit against it continues, a federal judge ruled Friday.

Nancy Turbak Berry, who formerly served as a Democratic state legislator from Watertown, and New York-based nonprofit Mayday Health filed the lawsuit in May against Gov. Larry Rhoden and Attorney General Marty Jackley, who are both Republicans. Rhoden signed the legislation in March after legislators approved it, but it wasn’t scheduled to take effect until this month.

South Dakota already had 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 felony prosecutions and fines.

Sides clash in court over legality of abortion-pill advertising in South Dakota

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.

Mayday also posted advertisements at South Dakota gas stations last year directing people to the organization’s website for information on abortion pills.

Jackley said during a hearing in Rapid City last month that the state is not attempting to criminalize the wearing of a sweatshirt. He said the state is targeting the way Mayday uses its website to connect South Dakotans with abortion-pill providers, which he said is not legal in a state that bans abortion.

“What the First Amendment doesn’t do is protect an illegal drug transaction in South Dakota,” he said.

A Mayday official said during the same hearing that the organization only provides information and does not encourage anyone to obtain abortion pills.

Judge Camela Theeler wrote in her 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.”

Mayday and Turbak Berry, along with their lawyer, Jim Leach, of Rapid City, will now seek a permanent order blocking the law’s enforcement.

Jackley issued a statement saying the state will continue to defend the new law.

“Protecting and defending innocent life is and remains important to our Legislature, governor, attorney general and citizens,” Jackley said.