Several states have abortion rights on the ballot again this midterm season—or candidates with strong stances on the issue.
Among them are six state attorneys general who are seeking reelection, and who recently voiced their support for an embattled South Dakota abortion law that has been accused of violating free speech.
On October 19, Attorneys General Brenna Bird of Iowa, Tim Griffin of Arkansas, Mike Hilgers of Nebraska, Kris Kobach of Kansas, James Uthmeier of Florida, and Drew Wrigley of North Dakota joined 12 other attorneys general in filing an amicus curiae brief, a document in which someone with relevant expertise or an interest in a given lawsuit’s outcome makes a legal argument.
All 18 of the attorneys general are Republican.
Law would restrict abortion-related speech
The brief supports a law passed earlier this year that prohibits “the dispensing, distribution, sale, or advertisement of certain articles or things for purposes of an unlawful abortion” in South Dakota and sets criminal and civil penalties.
South Dakota has had a total abortion ban in effect since 2022, with an exception only when “necessary to preserve the life of the pregnant female.”
The plaintiffs in Mayday Health v. Rhoden, which was filed in May, allege that the law is unconstitutional and violates the First Amendment. A preliminary injunction was issued, and later upheld, preventing the state from enforcing the law while the matter plays out in court.
Legal fight between state and nonprofit
The lawsuit follows a previous legal dispute between South Dakota and nonprofit Mayday Health, in which the latter was accused of violating state laws by placing signage at gas stations that said “PREGNANT? DON’T WANT TO BE?” and directing individuals to its website.
In a legal filing, the state argued that the ads contain deceptive information, and “immediate and irreparable injury, loss or damage will result to South Dakotan consumers who are misled by the deceptive advertisements.”
Mayday Health’s website says it shares information about reproductive healthcare, including “pills, birth control, and gender-affirming care in any state,” but does not provide abortion pills or medical advice.
Abortion medication, or mifepristone, has long been deemed safe and effective by the Food and Drug Administration (FDA) and major medical organizations.
Politics writer Jessica Valenti characterized the law as “a chilling attack on the First Amendment and our ability to talk freely about abortion” on her Abortion, Every Day Substack.
The American Civil Liberties Union (ACLU) also opposed the law, noting that “there’s no way for the state to enforce this bill” without using invasive surveillance.
Brief argues for states’ rights
The amicus brief argues that states have sovereignty to regulate within their borders, which “is currently under attack by out-of-state actors like Mayday Health,” and that such actors are advertising illegal services.
Some states have banned the mailing of abortion pills, but the U.S. Supreme Court ruled that the practice can continue for the time being.
Abortion access is on the ballot
In addition to the attorney general elections, next week, voters in Idaho, Nevada, and Virginia will decide on ballot measures meant to protect abortion rights.
Meanwhile, voters in Missouri—whose attorney general, Catherine Hanaway, signed the amicus brief—will vote on Amendment 3, which would repeal the right to abortion with limited exceptions and prohibit gender-affirming care for minors.
Sixty percent of Americans continue to say that abortion should be legal in all or most cases, according to a recent Pew Research poll; another Pew study found that Arkansas was the only state in which more than half of respondents were against abortion rights.
