Ahead of midterms, Republican attorneys general back South Dakota law that could criminalize abortion-related speech

As the midterms approach, Republican attorneys general across several states are backing a South Dakota law that could potentially criminalize speech related to abortion. On October 19, attorneys general from Iowa, Arkansas, Nebraska, Kansas, Florida, and North Dakota joined 12 others in filing an amicus curiae brief in support of a South Dakota law that penalizes the distribution or advertising of items related to unlawful abortions.

All 18 attorneys general are Republicans. The law, in place since 2022, bans abortion in South Dakota unless absolutely necessary to preserve the life of the pregnant individual. However, this year, the law is facing legal challenges, as plaintiffs in Mayday Health v. Rhoden argue that it violates the First Amendment. A preliminary injunction was issued, and upheld, to prevent the state from enforcing the law until the case is resolved.

The dispute stems from a previous legal battle between South Dakota and nonprofit Mayday Health, who placed signage at gas stations directing individuals to their website, which provided information about reproductive healthcare, including abortion. South Dakota contends that the advertisements are deceptive, and the lawsuit alleges that the law could lead to immediate and irreparable harm to South Dakotans who rely on this information.

The amicus brief also argues that states should have the authority to regulate within their borders, stating that out-of-state actors like Mayday Health are advertising illegal services. Despite the controversy, recent polls indicate that 60% of Americans believe abortion should remain legal in most or all cases, with Arkansas being the only state where more than half of respondents oppose abortion rights.