Mayday Health v. Rhoden
Issue
In *Mayday Health v. Rhoden*, Plaintiffs Mayday Health and Nancy Turbak Berry argue that South Dakota House Bill 1274 — which bans "advertising" anything related to an "unlawful abortion" — violates the First Amendment as an unconstitutional content- and viewpoint-based restriction on protected speech, and that Section 230 of the Communications Decency Act independently bars enforcement against a website for third-party content it links to but does not author. The question is non-obvious because HB 1274 targets online speech about out-of-state abortion services that may be entirely legal where they occur, placing abortion-access information at the intersection of two powerful federal legal shields — free speech doctrine and platform immunity — that no court has yet applied in this precise configuration.
What Happened
Plaintiffs filed this opening brief in support of a motion for preliminary injunction before HB 1274 takes effect on July 1, 2026, seeking to halt enforcement before any prosecution occurs. The brief argues that Plaintiffs have standing now because the South Dakota Attorney General's repeated public accusations amount to a credible pre-enforcement threat sufficient under *Babbitt v. UFW* to establish concrete injury through self-censorship. On the merits, Plaintiffs contend that HB 1274 is a viewpoint-based restriction subject to strict scrutiny it cannot survive, citing *Reed v. Town of Gilbert*, *Bigelow v. Virginia*, and recent circuit decisions striking down analogous abortion-speech laws in Idaho. On Section 230, Plaintiffs argue that because nearly all State allegations target content hosted on third-party sites that Mayday merely links to, the statute's express preemption provision bars HB 1274's application to Mayday as a publisher of that content. Plaintiffs seek a preliminary injunction against enforcement and ask that no bond be required.
Why It Matters
South Dakota's HB 1274 is among the first state laws to specifically target online advertising and linking related to out-of-state abortion access, putting it on a collision course with both First Amendment doctrine and Section 230 platform immunity simultaneously. The litigation's most consequential unresolved question is whether Section 230 protects a curated health-information aggregator whose entire editorial purpose is to facilitate access to services criminalized in the forum state — a scenario no circuit has directly addressed. Equally unsettled is how courts will handle the legal/illegal transaction distinction when the transaction is lawful where it occurs but forbidden in the state seeking to punish the speech, a fault line that *Bigelow* only partially resolved and that the State is likely to contest through *Pittsburgh Press* and *Central Hudson*. How this case resolves those questions could determine the constitutional boundaries of state power to suppress online health information that crosses state lines.
Related Filings
Other proceedings in the same litigation tracked by this monitor.
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