Mayday Health operates a site that assembles information about abortion medications. South Dakota’s statute, in its essential parts, bars anyone from knowingly dispensing, distributing, selling, or advertising items intended to facilitate an unlawful abortion under § 22-17-5.1:
[1] An object designed, adapted, or meant to produce an abortion; or
[2] An object, instrument, substance, drug, medicine, or thing that is advertised or described in a way intended to lead another person to use it for producing an abortion.
A violation of this provision is classified as a Class 6 felony….
Any person [other than the pregnant individual herself -EV] who administers to any person or who prescribes or procures for any person any medicine, drug, or substance or uses or employs any instrument or other means with the intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female is guilty of a Class 6 felony.
In a lengthy ruling, Judge Camela Theeler (D.S.D.) in Mayday Health v. Rhoden granted Mayday Health a preliminary injunction blocking the enforcement of this statute against Mayday Health; here are some highlights:
[1.] The court notes that the statute as applied to speech functions as a content-based restriction, and is therefore unconstitutional unless it fits one of the exceptions or survives strict scrutiny. The court held that the law does not fall within the “commercial speech” category, which receives reduced protection:
While Mayday includes links to abortion-pill merchants on its own site—thereby pointing to a specific third party offering a product—Mayday itself does not sell, handle, or distribute abortion pills for those third-party providers…. Moreover, there is no showing that Mayday has an economic motive behind its advertisements. Instead, the record shows Mayday is a nonprofit entity expressing a moral stance and delivering information without charge.
Finally, although Mayday engages in fundraising and merchandise sales on its site to advance its nonprofit mission, there is no proof that Mayday receives compensation for linking the abortion-pill vendor sites on its own site. Similarly, the defendants have not demonstrated that Mayday’s ads are directly tied to its fundraising capabilities and ongoing operations.
[2.] The court determined that Mayday’s speech did not fall within the exception for “speech integral to criminal conduct,” such as offers to commit a crime or solicitation or aiding and abetting a crime:
“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” U.S. v. Williams (2008); Giboney v. Empire Ice & Storage Co. (1949). Similarly, “[s]peech intended to bring about a particular unlawful act has no social value” and is unprotected.” U.S. v. Hansen (2023).
Nevertheless, “there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.” To be sure, simply because speech encourages criminal activity does not mean it is unprotected. See Williams (for example, that “I encourage you to obtain child pornography” is protected). Instead, for speech to lose protection, it must “intend[] to bring about a particular unlawful act[,]” Hansen, or be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action[,]” Brandenburg v. Ohio (1969).
It is undisputed that advertising abortion pills by a merchant in South Dakota would be unlawful under SDCL § 22-17-5.3 because it would clearly aim at an unlawful abortion under § 22-17-5.1. But Mayday is not an abortion-pill merchant and it does not sell, dispense, or distribute abortion pills.
Additionally, while Mayday advertises that abortion pills can be obtained in all 50 states and provides links to abortion-pill vendors, Mayday does not facilitate the transfer of pills into South Dakota or offer to do so. Nor does the evidence show that Mayday’s intended speech is designed to produce unlawful abortions or to incite imminent lawless action. {If a woman undergoes an unlawful abortion in South Dakota, she cannot be held criminally liable.} Instead, the record at this stage demonstrates that Mayday disseminates information it believes to be accurate about abortion pills, including links to vendors, with the aim of informing people of their options and educating them about those choices.
The Defendants contend, however, that Mayday’s speech is nevertheless integral to criminal conduct because Mayday resembles a newspaper running a want ad for prostitution … [citing] Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels (1973) …. While the U.S. Supreme Court noted in Pittsburgh Press that a newspaper could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes, the case concerned the placement of employment ads into separate columns for women only, men only, and women or men. The Court in Pittsburgh Press treated those advertisements as commercial speech and subjected the regulation to a less demanding standard of scrutiny.
Here, the Court has concluded that Mayday’s advertisement is not commercial speech. Moreover, unlike the ordinance in Pittsburgh Press, SDCL § 22-17-5.3 does not contain a provision governing when a person is alleged to have aided in the execution of the act declared unlawful by the statute. See Pittsburgh Press (making it unlawful “[f]or any person, whether or not an employer, employment agency or labor organization, to aid … in the doing of any act declared to be an unlawful employment practice by this ordinance ….”). Consequently, the Court does not find Pittsburgh Press particularly helpful in this case.
Defendants also argued that Mayday’s “advertising” is essential to criminal conduct because it amounts to aiding and abetting or solicitation, which require “the intent to promote or facilitate the commission of a crime”….
[Mayday co-founder Leo] Raisner acknowledged in cross-examination that he was quoted in a press statement noting that Mayday targeted its advertising in South Dakota due to its stringent abortion laws. He clarified, however, that the motivation was the lack of access to information in the state. In direct testimony, he explained that Mayday seeks to supply accurate information about abortion pills and other topics—such as morning-after pills, contraception, and gender-affirming care—through its advertising.
Raisner conceded that linking to abortion-pill providers makes it easier to learn that such providers exist. He testified that Mayday does not recruit anyone to act, does not seek to influence anyone’s decision to have an abortion, and does not encourage anyone to commit an illegal act. He also testified that the reference to “trusted sources” on Mayday’s site does not signify endorsement of abortion pills; rather, he argued that because much information out there is unreliable, Mayday’s “trusted sources” label indicates reliability. The Court found Raisner’s testimony on these points credible.
Mayday’s site itself reinforces that it does not advertise with the intent to facilitate crime. On the site, Mayday states:
Our mission is to share information about abortion pills, birth control, and gender-affirming care in every state. We want to empower people to make informed decisions about their own bodies.
We draw on guidance from top clinicians, lawyers, and health experts.
Mayday does not request personal information. We do not track data that could identify a visitor. We do not sell, handle, or profit from abortion pills. We are not affiliated with any telemedicine providers. We do not dispense medical or legal advice.
We simply want people to know their options.
When a visitor opens Mayday’s site, the prompt reads, “What do you need?” with four choices: Abortion, Morning-after pills, Birth control, Gender-affirming care. Selecting “Abortion” leads to a page listing five abortion-pill providers. The page also contains a FAQ section asking: “How do health care providers obtain pills for me?”; “What about costs, legal risk, and the sites we link to?”; and “Want more information and other ways to obtain pills?”
The Defendants introduced an exhibit showing the answer to the first question:
Shield laws shield doctors, nurses, and other practitioners in abortion-friendly states who prescribe and transmit abortion pills to people living in states that ban or severely restrict abortion. In many states, these laws protect prescribers and patient data, helping patients in other states access abortion pills online from the prescribers. For more on shield-law prescribers, see the Abortion Coalition for Telemedicine.
The Defendants also presented a separate “Frequently Asked Questions” page from Mayday’s site. For the question, “Are abortion pills safe?” the site states: “According to the World Health Organization, abortion pills are safe and effective within the first 12 weeks of pregnancy. If you are beyond 12 weeks, we link to ineedana, a trusted source with information on procedures and post-12-week care.”
For the question, “Why do some buttons lead to other sites? Can I trust them?” the site responds: “Some of our links connect to other sites because they offer the best content for a particular aspect of abortion care. We only link to trusted sites and partners. You can click here to learn how to safeguard your digital privacy before leaving Mayday.”
Based on the evidence presented and the Court’s assessment of Raisner’s credibility, the Defendants have not demonstrated that Mayday’s advertising is aimed at causing someone else to commit a particular crime, and therefore have not shown that Mayday’s advertising is integral to criminal conduct….
[3.] The court therefore concluded that the South Dakota statute, as applied to Mayday, failed strict scrutiny unless proven otherwise; and at this stage, the Defendants did not attempt to meet that standard.
James Leach represents Mayday.
Credit to David Keating (Institute for Free Speech) for the pointer.
