NEW YORK (Meghan O’Brien / SD Searchlight) – A federal judge declined to intervene Wednesday against South Dakota Republican Attorney General Marty Jackley’s attempt to shut down a national nonprofit’s abortion-rights ad campaign.
Jackley asked a South Dakota state judge in December to stop advertisements by nonprofit Mayday Health. The advertisements on gas station pumps around the state ask “Pregnant? Don’t want to be?” The ads also include a link to the group’s website, which provides information about the availability of abortion pills.
Jackley said Mayday’s advertisements mislead people to believe abortion is legal in South Dakota, which bans abortion except when the life of the mother is at risk.
Mayday Health filed a federal lawsuit in January to prevent Jackley from taking legal action against the campaign, on grounds that the ads are protected by the First Amendment right to free speech. The nonprofit educates people about the safety and effectiveness of abortion pills. After it began its ad campaign in early December, Jackley sent the group a cease-and-desist letter.
On Wednesday, a federal judge in New York declined to grant Mayday Health a preliminary injunction against Jackley’s actions. The judge issued the ruling orally during a teleconference.
“I do believe that the law requires me to abstain from exercising federal jurisdiction in this case,” said Judge Katherine Polk Failla. “I trust that the South Dakota court will get it right.”
Meanwhile, Jackley’s lawsuit continues in state court, where he’s seeking an order to shut down Mayday’s campaign. A hearing in the case is scheduled for Feb. 20 in Pierre.
The drugs mifepristone and misoprostol are commonly used in medication abortions. Jackley said Wednesday that state law makes it illegal to mail “drugs of this nature” into the state.
“The First Amendment is important,” Jackley said at a press conference. “But it’s an unprotected speech when you’re being deceptive about it, when you’re seeking an illegal activity.”
Mayday Health did not immediately respond to a message Wednesday from South Dakota Searchlight.
South Dakota lawmakers adopted an abortion trigger ban in 2005 that took effect in 2022, after the U.S. Supreme Court overturned abortion rights previously guaranteed by the Roe v. Wade decision.
In 2023, medication abortions accounted for 63% of abortions in the country, according to data from the Guttmacher Institute. Mifepristone and misoprostol are listed on the World Health Organizations’ list of essential medicines. In 2024, the U.S. Supreme Court rejected an attempt by anti-abortion medical organizations to overturn the Food and Drug Administration’s prescribing guidelines for mifepristone.
