South Dakota’s abortion pill advertising ban runs into free speech roadblock

South Dakota is having trouble enforcing a law banning advertising about abortion pills. On July 17, 2026, less than three weeks after the ban took effect on July 1, U.S. District Judge Camela C. Theeler issued an injunction blocking its enforcement.

She ruled that the ban likely is unconstitutional in response to a lawsuit filed by Mayday Health, a nonprofit based in New York. Mayday’s website provides information about abortion pills, with links that can help women find a telemedicine provider.

Mayday wanted to promote its website in South Dakota, including by posting signs at gas stations that asked: “Pregnant? Don’t Want to Be?” and encouraged people to “learn more” by going to its website. Fearing prosecution for having posted these signs, Mayday sued. It contended that South Dakota’s advertising ban censored truthful information and violated its First Amendment free speech rights.

As an expert on reproductive rights and First Amendment law who has argued before the Supreme Court, I think this case illustrates how the battle over abortion, which used to revolve around whether it should be legal everywhere in the U.S., now focuses on pills and telemedicine. It also shows how the First Amendment can limit a state’s ability to restrict health information just because its leaders disapprove of it.

Does this ban violate freedom of speech?

I have no doubt that it does.

The U.S. Supreme Court ruled on a similar question more than 50 years ago in Bigelow v. Virginia. In that 1975 case, the court examined whether it is legal to provide residents of a state that restricts abortion with truthful information about how to get an abortion in another state.

The justices found that those ads constituted speech on a “topic of great public concern,” meaning that they are fully protected by the First Amendment’s guarantee of freedom of speech.

And it is a bedrock principle of free speech law, repeatedly reinforced by the Supreme Court, that a state cannot ban speech based on its content or point of view.

South Dakota’s law violates this principle of “viewpoint neutrality” because it does not restrict ads that say abortion pills are immoral or dangerous. It punishes only advertisements that promote abortion pills and say they are safe.

A law that restricts speech on only one side of a topic is unconstitutional unless it is based on what courts deem to be a “compelling need” that can’t be advanced by any other means that would not restrict speech. That legal test, known as “strict scrutiny,” is by design intended to be nearly impossible to satisfy.

South Dakota did not even try to justify its law under this strict scrutiny standard. It tried instead to defend its abortion advertising ban by arguing that it regulates “commercial speech,” which can be limited under a legal standard easier to meet than “strict scrutiny.”

Commercial speech is defined as speech based solely on economic interests or merely proposing a business transaction. I believe Judge Theeler properly rejected that argument.

Mayday is a nonprofit. It earns no money from any abortion pill provider, and it is not engaged in distributing abortion pills. Mayday instead provides links to accurate medical information and sources of support to help people make a reproductive health decision. Therefore, its speech is not related to any commercial transactions.

Some of the links on its website may help people find a telehealth provider that might charge for its medical services. However, that does not turn Mayday’s website into nothing more than an ad for commercial services.

Are there any related precedents?

South Dakota’s ban on abortion pill advertising hardly marks the first time a state has tried to restrict the provision of medical information that it disfavors. Yet whether that information supports or opposes access to abortion, or respect for LGBTQ+ rights, U.S. courts have consistently ruled that the First Amendment protects it.

For example, Judge Theeler bolstered her conclusion that Mayday was not engaging in commercial speech by relying on a December 2025 decision by the U.S. Court of Appeals for the 2nd Circuit, NIFLA v. James. That decision held that an anti-abortion nonprofit’s website providing information about “abortion pill reversal,” with links to doctors who might provide such services, was not commercial speech.

In that case, New York Attorney General Letitia James contended that promoting an unapproved treatment – one that medical studies have found to be dangerous – could violate state consumer fraud laws. The court rejected her contention that this was commercial speech the state could regulate, because, like Mayday, the nonprofit didn’t receive any commission or earnings from the doctors it promoted and was providing information that went beyond proposing a commercial transaction.

If the First Amendment protects the right of anti-abortion organizations to maintain websites providing links to doctors who sell pills that they say could undo an abortion, despite a state’s claim they are peddling harmful and untrue health information, then an organization like Mayday that supports abortion rights should have the same free speech right to promote pills that induce an abortion and provide links to telemedicine doctors who will prescribe them.

In a similar “what’s sauce for the goose is sauce for the gander” reasoning, the South Dakota court also relied on the U.S. Supreme Court’s March 31, 2026, decision in Chiles v. Salazar. The court’s majority in that case held that Colorado violated the First Amendment when it barred licensed mental health counselors from speaking against being LBGTQ+ with their patients while permitting them to use pro-LGBTQ+ speech.

Those cases, along with the South Dakota decision, illustrate that even though states have the power to regulate medical care, they cannot exercise that power by prohibiting speech on medical topics that the state disagrees with.

Where do you think this case is headed?

The court’s decision was a preliminary injunction, which means that there will be more proceedings before the court issues a final decision about South Dakota’s abortion advertising ban.

But given the well-settled First Amendment law Judge Theeler relied on, in my view, her opinion that the South Dakota advertising ban is unconstitutional is unlikely to change.

Should South Dakota lose again, it would have the right to appeal the District Court ruling to the U.S. Court of Appeals for the 8th Circuit.

Meanwhile, Mayday has sued over a very similar Idaho law banning abortion pill advertising. It has already submitted a brief urging the Idaho federal court to follow the South Dakota decision.

If, as is likely, the Idaho court rules that the state’s advertising ban violates Mayday’s free speech rights, then Idaho can appeal to the U.S. Court of Appeals for the 9th Circuit.

This raises the possibility that there could be conflicting decisions from two federal appellate courts. If that happens, the Supreme Court would most likely take the case.

If South Dakota does lose this case, that may also give pause to other states that are also considering banning ads regarding the availability of abortion pills prescribed online.

What does South Dakota’s law and this litigation say about abortion today?

The debate over abortion in the U.S. today is now dominated by whether it should be legal for women to obtain abortion pills through telehealth consultations, leading to interstate conflict between the states that ban abortion and those that protect the right to have abortions.

The use of telehealth to prescribe abortion pills has contributed to the number of abortions increasing since 2022, despite the bans or restrictions that have been put into place in more than half the states.

States with abortion bans are now focused on trying to restrict out-of-state providers from prescribing abortion pills to their residents. Their efforts range from South Dakota’s and Idaho’s advertising bans to bans on mailing abortion pills into the state, to prohibiting prescribing abortion pills remotely – even though the Food and Drug Administration currently permits telehealth prescriptions for abortion medication.

In response to abortion bans in other states, many of the states that permit abortions have passed “shield laws.” Those statutes protect doctors and other medical providers in their states who prescribe abortion pills over the internet from being investigated by or extradited to face lawsuits in states where abortion is banned.

I believe that as long as prescribing abortion pills by telemedicine remains legal, this battle between states will go on and that women in states that have banned abortion will keep using telehealth to obtain abortion pills by mail.

And that will remain an option unless abortion opponents persuade the FDA to revoke its approval of prescribing abortion pills by telemedicine.