South Dakota Attorney General Marty Jackley, a Republican, received over 650 consumer complaints in December about advertisements across the state that read, “Pregnant? Don’t want to be?” directing consumers to Mayday Health.
Jackley filed a cease and desist order in state court against Mayday Health, a 501(c)(3) nonprofit organization that provides education about the abortion pill. The attorney general claimed that the advertisement was in violation of South Dakota’s laws on abortion.
South Dakota has some of the strictest abortion laws in the country, as abortion is only permitted when it is necessary to save the life of the mother.
Mayday Health, however, pushed to have its case heard in a New York federal court that could be sympathetic to its argument in favor of the advertisements.
On Feb. 11, Judge Katherine Polk Failla ruled against intervening in the case by declining to grant Mayday Health a preliminary injunction.
“I do believe that the law requires me to abstain from exercising federal jurisdiction in this case,” said Failla. “I trust that the South Dakota court will get it right.”
Jackley spoke to The Daily Signal following the pro-life victory.
“My position has been clear and unwavering that the deceptive advertisement is harmful to South Dakotans. I will fight against it. I will do everything I can to stop it,” Jackley told The Daily Signal.
Mayday Health provided a statement from Executive Director Liv Raisner in response to a request for comment from The Daily Signal.
Raisner said, “The district judge said it best herself: ‘I do believe that the proper way to view Mayday’s website and the materials on it is noncommercial speech subject to protection under the First Amendment.’ The judge ruled that she doesn’t have jurisdiction over this case, but we look forward to bringing this fight to South Dakota.”
Mayday Health Provides Abortion Pill Access to Girls Just 15 Years Old
The Daily Signal went onto Mayday Health’s website to see how easy it was to obtain an abortion pill. Girls as young as 15 years old can seek abortion help or order abortion pills on Mayday Health’s website.
On Mayday Health’s website, the service asks users, “What do you need?” The website’s options include “abortion,” “morning after pills,” “birth control,” and “gender-affirming care.”
When users click on the abortion button, the site asks when the user’s last period was, as well as an option that reads, “Just take me to the abortion pills.”
The website also informs users that “you can proactively order abortion pills even if you’re not currently pregnant.”
The website continues that “abortion pills are safe, effective during the first 12 weeks, and FDA-approved to get in the mail in all 50 states.”
“It is safe to do your own abortion at home with abortion pills,” the website adds.
Dr. Christina Francis, CEO of the American Association of Pro-Life OBGYN’s, or AAPLOG for short, challenged these claims in an interview with The Daily Signal.
“Mayday Health’s website not only openly flaunts that they are violating the laws of pro-life states by shipping to all 50 states, but they also appear to intentionally mislead women to think that these dangerous drugs are FDA-approved up to 12 weeks,” Francis told The Daily Signal. “In fact, they are only approved by the FDA up to 10 weeks, and the already significant risks increase even more beyond that.”
If a user says their last period was “less than 12 weeks” ago, the website shows a map of the United States, with red states showing restrictions on abortion and blue states without restrictions.
When users answer “yes” to living in a state shaded in red on the map, Mayday Health prompts users with multiple providers for abortion pills.
If the user claims they do not live in a restrictive state, they are redirected to an “ineedana.com” page that asks, “Need an abortion?”
Ineedana.com’s “About” page says, “We’re designers and engineers that research, report, and seek to improve how people get abortions in the United States.”
“No matter what state you live in you still have options,” the ineedana.com website adds above a button that says, “Search your options now.”
Users are then asked to fill out a form that asks their location, the date of their last period, and their age.
The Daily Signal filled out this form as if it were a 15-year-old girl living in South Dakota who had her period last on Jan. 1.
Ineedana.com then provides a disclaimer that reads, “Abortion is banned in South Dakota, but you’ve still got options.”
The options presented to this fictitious 15-year-old girl from South Dakota include flying to another state, driving to an out-of-state clinic, or ordering abortion pills online.
The closest clinic, ineedana.com claims, is nearly a six-hour drive away in Omaha, Nebraska.
Ineedana.com projects that the trip will cost over $800, but includes a hyperlink that says, “Don’t worry, there’s $ help!” That hyperlink directs users to a list of a dozen organizations that ineedana.com claims “may be able to offer you financial help, travel assistance, emotional support, and more.”
The page lists the “Justice through Empowerment Network,” “Midwest Access Coalition,” and “South Dakota Access for Every Woman” as organizations that work inside the state of South Dakota and could provide help.
While the Justice through Empowerment Network and South Dakota Access for Every Woman did not respond to The Daily Signal’s request for comment, Midwest Access Coalition responded.
“We are a practical abortion fund that helps people traveling to, from, and within the Midwest to access a safe, legal abortion,” Midwest Access Coalition wrote in an email. “To do that, we support clients with travel, accommodations, food, and childcare, so that they have the support they need to reach they care they deserve. We use ineedana.com so that our clients can find an abortion clinic that can meet their needs.”
A disclaimer under the order abortion pills online option claims that “taking pills on your own is medically very safe,” though “may come with legal risk.”
Francis disputed the alleged safety of the abortion pill. “The abortion pill can lead to serious complications for women, including hemorrhage, severe infection, and the need for emergency surgical care.”
“They can be ordered online by anyone, meaning a woman, a minor, or even an abuser, without identification, confirmation of pregnancy, or any medical oversight or follow up,” Francis continued.
When users click through to ineedana.com’s legal risk page, it claims, “when it comes to abortion bans, most laws specifically say the pregnant person can’t be criminally charged. Self-managed abortion, or ending your own pregnancy, isn’t a crime in any state (except past 24 weeks in Nevada). But, just because something isn’t a crime doesn’t mean you can’t be harassed or arrested by law enforcement (even in ‘safe’ places like California).”
“Most people take ‘legal risks’ all of the time, like speeding, jaywalking, or smoking weed. You make decisions about risk every day without really thinking about it,” the page adds. “‘Legal risk’ doesn’t inherently mean criminalization.”
If a user decides to pursue obtaining abortion pills online—which “can cost an estimated $150 or less and arrive in as few as 2 days”—from ineedana.com, users are presented with several providers in “shield law” states.
Shield laws are laws that prevent abortion providers from prosecution if they provide abortion services or so-called transgender care to patients who live in states where these procedures and treatments are illegal. Many of the providers, as well as Mayday Health, also connect mothers with other nonprofits that provide financial assistance to cover the $150 cost.
One of the options includes Choices Rising, an abortion pill virtual clinic, which ineedana.com notes as a “minimum age” of 15. Choices Rising’s entry on the webpage is the only option on the page that notes a minimum age.
Ineedana.com and Choices Rising could not be reached for a comment.
Francis warns of the danger that FDA-approved accessibility to these drugs has had. “This situation amounts to medical negligence, and the FDA must act responsibly by reinstating essential safeguards.”
South Dakota Continues Fight With Mayday Health
“This was an important decision, not just for South Dakota, but for all states when it comes to respecting our laws and respecting states rights and state sovereignty,” said Jackley.
“Beyond the issue of the abortion pills, it is an abstention doctrine that is very important to the states, very important to me as attorney general, and it was important to me as United States Attorney,” continued Jackley. “I just appreciate that the federal court gave us the opportunity to be heard and arrived at the conclusion that South Dakota is the right place to enforce our laws in this instance.”
The central question in the case is whether or not Mayday Health’s advertisements were protected by the First Amendment. “[The First Amendment] doesn’t apply in this situation because it’s an unprotected speech. It is an illegal activity,” Jackley argued.
“The laws in South Dakota, in my opinion, are constitutional. They fit within Dobbs. It was a trigger decision, a trigger statute, that once that decision occurred, became the law of the land, and the legislature has made a very strong effort to protect not just the unborn, but the pregnant woman,” said Jackley.
The case Mayday Health v. Jackley is set to be heard in Pierre, South Dakota, on Feb. 20.
The attorney general explained where he stands going into the case. “We believe there’s deceptive practices and illegal practices occurring,” he said. “One is the sale of abortion pills, which are illegal in South Dakota. The other is public safety, how they are going beyond the FDA approved use of certain pills.”
“There’s also concerns raised about deceptive practice advising young pregnant mothers that if they, if they order the pills, they take the pills and they have a medical complication to not seek medical assistance, which is, of course, dangerous for both the baby as well as the pregnant mother,” said Jackley.
He believes the fact that these ads were targeting vulnerable women will be a big part of this case. The New York federal court records listed approximately 10 examples where the pills were being illegally brought into the state, including dangerous instances where mothers were being given the pills unknowingly by the fathers and ultimately experiencing losing the baby and severe health issues.
The attorney general believes South Dakota “became the tip of the spear” for Mayday Health.
Mayday Health has also conducted similar campaigns in Kentucky and North Dakota. In both states officials have taken legal action against the campaigns.
