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Free Speech

Site Linking to Abortion-Pill-Selling Websites Likely Protected by First Amendment, Even in States That Generally Ban Abortions

Eugene Volokh | 7.17.2026 5:06 PM

Mayday Health runs a website that provides various information about abortion pills. South Dakota law provides, in relevant part,

No person may knowingly dispense, distribute, sell, or advertise any of the following for purposes of an unlawful abortion pursuant to § 22-17-5.1:

[1] An article or thing designed, adapted, or intended for producing an abortion; or

[2] An 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.

A violation of this section is a Class 6 felony….

Any person [other than the pregnant female 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 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.

Today's longish decision by Judge Camela Theeler (D.S.D.) in Mayday Health v. Rhoden issued a preliminary injunction blocking the enforcement of this law against Mayday Health; a few excerpts:

[1.] The court observes that the law (as applied to speech) is a content-based speech restriction, and thus is unconstitutional unless it fits within an exception or passes strict scrutiny. The court held that the law didn't fit within the category of "commercial speech," which is entitled to less protection:

While Mayday links abortion pill merchant websites on its own website—thereby referring to a specific third-party that provides a product—Mayday does not sell, handle, or distribute abortion pills for these third-party providers…. Further, there is no evidence that Mayday holds an economic motivation for its advertisements. Rather, the evidence and testimony establish that Mayday is a nonprofit organization expressing a moral belief and providing information for free.

Finally, although Mayday fundraises and sells merchandise on its website to further its nonprofit mission, there is no evidence that Mayday receives payment for linking the websites for abortion pill merchants on its own website. Similarly, the Defendants have not established that Mayday's advertisements are directly related to its ability to fundraise and thus operate.

[2.] The court concluded that Mayday's speech didn't fall within the exception for "speech integral to criminal conduct," such as offers to commit crime or solicitation or aiding and abetting of........

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