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

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 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). Likewise, “[s]peech intended to bring about a particular unlawful act has no social value” and “is unprotected.” U.S. v. Hansen (2023).

However, “there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality.” To be sure, just because speech encourages criminal activity does not mean it is unprotected. See Williams (noting, for example, that “I encourage you to obtain child pornography” is protected). Rather, for speech to exceed the bounds of protection, the speech 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 it would be unlawful under SDCL § 22-17-5.3 for an abortion pill merchant to advertise its abortion-producing pills in South Dakota because such advertising would clearly be for purposes of an unlawful abortion pursuant to SDCL § 22-17-5.1. But Mayday is not an abortion pill merchant and it does not sell, dispense, or distribute abortion pills.

Further, while Mayday advertises that abortion pills can be obtained in all 50 states and provides links on its website to the websites for abortion pill merchants, Mayday does not facilitate the transfer of or offer to transfer abortion pills into South Dakota. Nor does the evidence establish that Mayday’s desired speech is intended to produce unlawful abortions or incite imminent lawless action. {If a woman does undergo an unlawful abortion in South Dakota, she cannot be held criminally liable. SDCL § 22-17-5.2.} Rather, Mayday’s evidence at this juncture establishes that it spreads what it believes to be accurate information about abortion pills, including links to abortion pill merchants, with the intent of informing people that they have choices and to provide education about those choices.

The Defendants, however, assert that Mayday’s speech is nevertheless integral to criminal conduct because Mayday is akin to a newspaper publishing a want ad for prostitution … [citing] Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels (1973) …. While the United States Supreme Court explained in Pittsburgh Press “that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes[,]” the speech at issue in Pittsburgh Press concerned the placement of employment (not prostitution) advertisements into separate columns for women only, men only, and women or men. The Court in Pittsburgh Press held that the advertisements constituted commercial speech and examined the regulation at issue under less demanding scrutiny

Here, the Court has concluded that Mayday’s advertisement is not commercial speech. Further, unlike the ordinance at issue in Pittsburgh Press, SDCL § 22-17-5.3 does not contain a provision governing when a person is alleged to have aided in the doing 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 ….”). Therefore, the Court does not find Pittsburgh Press particularly instructive in this case.

Seemingly drawing on the “aid” language in Pittsburgh Press, the Defendants contend that Mayday’s “advertising” is integral to criminal conduct because it [constitutes criminal aiding and abetting or solicitation, which require “the intent to promote or facilitate the commission of a crime”]….

[Mayday co-founder Leo] Raisner acknowledged during cross-examination that he was quoted in a media statement that Mayday targeted its advertising in South Dakota because of its strict abortion laws. However, he clarified that Mayday did so because of the lack of access to information in South Dakota. He also stated on direct examination that Mayday aims through its advertising to provide accurate information about abortion pills and other subjects, including morning after pills, birth control, and gender affirming care.

Raisner agreed on cross-examination that providing links on its website to abortion pill merchants makes it easier to learn that providers of abortion pills exist. However, he testified that Mayday does not recruit anyone to do anything, does not attempt to influence anyone’s choice to have an abortion, and does not recommend anyone commit an illegal act. He also testified that the reference to “trusted sources” on Mayday’s website does not mean that Mayday is promoting abortion pills; rather, he claimed that because there is a lot of information out there that is not trustworthy, Mayday’s reference to trusted sources indicates that the information on its website can be trusted. The Court finds Raisner’s testimony on these matters credible.

Mayday’s website further supports that it does not advertise with the specific intent to promote or facilitate the commission of a crime. On its website, Mayday identifies:

Our mission is to share information about abortion pills, birth control, and gender-affirming care in any state. We hope to empower people to make their own informed decisions about their own bodies.

Our information comes from top clinicians, lawyers and health experts.

Mayday does not ask for any personal info. We do not track info that could be used to identify a visitor to this website. We do not sell, handle or benefit from abortion pills. We are not affiliated with any telehealth providers. We do not give medical or legal advice.

We just want people to know their options.

When a consumer goes to Mayday’s website, the page displays, “What do you need?” followed by four options: Abortion, Morning after pills, Birth Control, Gender-Affirming Care. If a user clicks on “Abortion,” they are taken to a new page that lists five abortion pill providers. The page also includes a “FAQs” section with the following questions: “How are health care providers able to get me pills?”; “Questions about costs, legal risk, and websites we link out to?”; and “Want more information and other ways to get pills?”

The Defendants entered into evidence an exhibit depicting the answer to the first question:

Shield laws offer protection for doctors, nurses and other practitioners in abortion-friendly states who prescribe and send abortion pills to people living in other 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 information on shield law prescribers, visit the Abortion Coalition for Telemedicine.

The Defendants also entered into evidence a separate “Frequently Asked Questions” page from Mayday’s website. For the question, “Are abortion pills safe?” the website provides: “According to the World Health Organization, abortion pills are safe and effective in the first 12 weeks of pregnancy. If you are 12 weeks more [sic] pregnant we link to ineedana, a trusted source which has information on abortion procedures and care after 12 weeks.”

For the question, “Why do other buttons send me to other websites? Can I trust them?” the website provides: “Some of our links go to other websites because they have the best content for a certain aspect of abortion care. We only link to other trusted websites and partners. You can go here to see how to best protect your digital privacy before leaving Mayday.”

Based on the evidence presented and the Court’s credibility assessment of Raisner’s testimony, the Defendants have not shown that Mayday advertises with the specific intent that another person engage in specific criminal conduct and thus have not shown that Mayday’s advertising is integral to criminal conduct….

[3.] The court therefore concluded that the South Dakota law, as applied to Mayday was unconstitutional unless it passed strict scrutiny; and at this stage, “the Defendants did not attempt to satisfy strict scrutiny.”

James Leach represents Mayday.

Thanks to David Keating (Institute for Free Speech) for the pointer.