South Dakota Can't Stop Website From Informing Women About Abortion Pills
And it can't ban a former state lawmaker from wearing a sweatshirt that advertises that website, either.
South Dakota can't stop a website from telling women of that state about abortion pills and where to get them—at least not yet. A federal judge has temporarily blocked the state from enforcing its new anti-abortion advertising law against Mayday Health.
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Mayday Health runs a website with information about where people can obtain abortion pills, including pills prescribed remotely and mailed to women in states—like South Dakota—where abortion is banned.
Notably, Mayday doesn't provide abortion pill prescriptions itself—just information. Nonetheless, South Dakota has been engaged in a monthslong First Amendment battle with the group, beginning with a cease-and-desist letter sent last December over the group's gas station ads for its website.
In March, South Dakota passed a ban on abortion advertising by amending its existing abortion-ban law. The new law says "no person may knowingly dispense, distribute, sell, or advertise any…article or thing designed, adapted, or intended for producing an abortion" or any "article, instrument, substance, drug, medicine, or thing that is advertised or described in a manner calculated to lead another to use or apply it for producing an abortion." It also authorized the state's attorney general to sue in civil court over alleged violations of the law.
Mayday sued, calling this new anti-abortion advertising law unconstitutional.
U.S. District Judge Camela Theeler seems poised to agree with Mayday. On Friday, Theeler issued a preliminary injunction against South Dakota enforcing the law against Mayday or against lawyer and former state senator Nancy Turbak Berry.
As part of Mayday's lawsuit, Berry had argued that she could be advertising abortion by wearing a Mayday sweatshirt.
Although the state says "that Turbak can wear her sweatshirt without fear of prosecution, [it has] not disavowed the State's authority to prosecute Turbak or persons like Turbak," noted Theeler, holding that Turbak does have standing to sue. "While the [state] cast the message on Turbak's Mayday sweatshirt as mere advocacy, the message her sweatshirt conveys is markedly similar to the message on Mayday's gas station placards—a message that the Defendants argue would violate South Dakota law."
Theeler went on to note that South Dakota's abortion advertising law is a content-based restriction on speech. And there's a high bar for such restrictions being constitutional.
There are limits and exceptions, of course. For instance, "speech integral to criminal conduct" is not protected by the First Amendment.
But "just because speech encourages criminal activity does not mean it is unprotected," wrote the judge. "Rather, for speech to exceed the bounds of protection, the speech must 'intend[] to bring about a particular unlawful act[,]' or be 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" And in this case, Mayday is doing neither.
Mayday doesn't profit from abortion-pill sales, it doesn't directly facilitate their sale to South Dakota residents, and it doesn't assist in their transfer into the state, the judge observed. And even if a South Dakota woman uses Mayday to find information about abortion pills that she then receives and takes, this would not be an incitement to imminent illegal action, because it's not criminal for a woman to take abortion pills.
Commercial speech is generally held to receive less First Amendment protection than non-commercial speech. But Mayday's website is not commercial speech, as "Mayday does not sell, handle, or distribute abortion pills for [the] third-party providers" that it links to and as "there is no evidence that Mayday holds an economic motivation for its advertisements," the judge wrote. "Rather, the evidence and testimony establish that Mayday is a nonprofit organization expressing a moral belief and providing information for free."
The Volokh Conspiracy has more on the judge's decision here (and you can read the full opinion here). For now, I'll just point out that the ruling is good news for both reproductive freedom and free speech.
Should South Dakota's law ultimately stand, we can expect not only to see that state go after Mayday and possibly other websites that provide information about abortion pills, but to see multiple states with abortion bans go after them, along with any entity that participates in providing information about remote prescriptions, from web hosting services to social media platforms and more.
Two more quick news items about abortion pills, one good and one not so good:
A recent study suggests abortion pills are just as safe and effective when dispensed by physician's assistants or nurse practitioners as when prescribed by physicians. Until relatively recently, when the Food and Drug Administration loosened the rules, only physicians could prescribe abortion pills (and this had to be done in person). Anti-abortion advocates have been trying to go back to that arrangements. In the recent study, led by researchers at the University of California San Diego, effectiveness of the two-pill abortion regimen (mifepristone followed by misoprostol) was slightly more effective when prescribed by "advance practice clinicians" such as nurse practitioners and physician assistants then when prescribed by physicians (92.9 percent vs 90.1 percent).
Meanwhile, some anti-abortion activists and politicians have been toying with the idea of targeting abortion pills through the Comstock Act. Last week we got yet another sign that this could become a reality. "Under former President Joe Biden, the [Justice Department] issued a legal opinion concluding the 1873 Comstock Act—which makes it illegal to send "abortion-causing articles" through the mail—does not prohibit the mailing of abortion medications today," notes Ms. At a recent confirmation hearing for acting Attorney General Todd Blanche, Sen. Ted Cruz (R–Texas) asked if Blanche would "commit to carefully reviewing that opinion, to ensure that it faithfully reflects the actual statutory text that Congress enacted" with the Comstock Act. Blanche said he would.
FOLLOWUP
Will court reconsider Ohio age verification law? The tech trade group NetChoice is asking the U.S. Court of Appeals for the 6th Circuit to reconsider a case involving Ohio's law requiring age verification for social media use. In June, a three-judge panel of the court allowed enforcement of the law to go forward. Now, NetChoice wants a rehearing en banc, meaning the court's full roster of judges would weigh in.
On Substack
What you encounter on AI systems could be shaped by oppressive laws abroad. A new report from the Meta Oversight Board found prominent AI systems "are significantly less likely to criticize political regimes that restrict free expression." The resulting "free speech infringements by proxy" mean AI use in America and around the world could be shaped by authoritarian foreign regimes.
This is incredibly dangerous, suggests Sarah McLaughlin of the Foundation for Individual Rights and Expression (FIRE):
We no longer live in the days when a person who wants to say something just needs to know what local or national laws are on the books. What you can say online, and sometimes even offline, may be influenced and determined by a panoply of overlapping foreign speech laws. The same goes for what you can read, learn, and generate on the internet, from an online classroom to a social media platform to the LLM you use for work or study.
These manipulated results affect the millions, and perhaps billions, of people who are growing increasingly reliant on AI in their work, research, and play. But it will subtly affect many more people than just the direct users of LLMs. As writers, creators, companies, educators, and researchers generate content for broader audiences, it will influence political and historical material at scale—whether shared in books, movies, social media content, or more—for consumers unaware of the bias incorporated into the models producing it.
What a victory it represents for authoritarians to see their repression ripple far beyond their own police and prisons into technology that shapes what people say and understand about them and the world.
Read These Threads
In 2008 South Korea made it so you had to have your name attached to posts online.
Can you guess what happened next?
Half the country's people were hacked—and that was just ONE hack in a series of them.
And nothing improved online.@TheFIREorg @sarahemclaugh told me about… pic.twitter.com/lNUqTjc4QY
— Shoshana Weissmann, Sloth Committee Chair 🦥 (@senatorshoshana) July 16, 2026
The idea of "harmful speech" is nothing more than a pretext to government censorship.They started, of course, with pornography, then quickly moved into political dissent. Now they're casting entire platforms and formats as dangerous — as if ideas were weapons or drugs.
— Mike Stabile (@mikestabile.bsky.social) 2026-07-17T21:42:33.806Z
There's another effort to break encryption in the US Senate!The STOP CSAM Act was added to the current version of the annual defense spending bill, known as the NDAA.If passed, it could require Internet infrastructure services and online platforms to break encryption to scan all data.
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