Mayday Health v. Rhoden

Issue: In *Mayday Health v. Rhoden*, plaintiffs Mayday Health and attorney Nancy Turbak Berry argue that South Dakota HB 1274 (2026), which criminalizes advertising abortion-related services, violates the First Amendment as applied to a nonprofit's health-information website and to an individual's act of wearing a branded sweatshirt bearing abortion-related information. They further contend the statute's "advertise" prohibition is facially overbroad under the First Amendment and, separately, that federal internet immunity law — 47 U.S.C. § 230 — preempts the statute's application to a website that curates and links to third-party reproductive health content. The case presents the unresolved question of whether § 230's express preemption provision displaces a state abortion-advertising law when enforcement would effectively hold a linking or aggregating website liable as a publisher of content it did not create.

On May 29, 2026, plaintiffs filed this initiating complaint in the U.S. District Court for the District of South Dakota, bringing a pre-enforcement challenge under 42 U.S.C. § 1983 against the Governor and Attorney General in their official capacities. The complaint seeks a preliminary and permanent injunction against HB 1274 enforcement and declaratory relief on all four theories. Plaintiffs argue Mayday's website disseminates noncommercial, morally motivated health information entitled to full First Amendment protection, and they cite prior statements by a Southern District of New York judge — made in an earlier Mayday case that was dismissed on abstention grounds without reaching the merits — as persuasive evidence that the speech is protected. Turbak's standing as a plaintiff rests on the State's own prior prosecution theory, which plaintiffs contend establishes a concrete, credible threat that wearing Mayday merchandise could itself trigger criminal liability. On the § 230 theory, plaintiffs characterize Mayday as an interactive computer service provider that links to and aggregates third-party reproductive health content, arguing that HB 1274's enforcement would impose publisher liability for that third-party material in direct conflict with federal law.

This case asks a federal court to decide, for the first time, whether a state law criminalizing abortion-related advertising can be blocked by the federal internet immunity statute that shields websites from liability for content they link to or host but did not create. If the court accepts the § 230 preemption argument, it could constrain how states regulate reproductive health information online regardless of how those laws are drafted, establishing a template that other platforms and advocacy organizations could invoke against similar statutes nationwide. The case also tests a foundational distinction — whether a nonprofit's health-information website constitutes fully protected noncommercial speech or targetable advertising — with significant consequences for advocacy groups operating under restrictive state abortion laws. Platform-law practitioners will watch the court's treatment of the "treated as publisher or speaker" element closely, as its resolution in this politically charged context could shape the outer boundaries of § 230 immunity well beyond the reproductive health field.

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.

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.

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.