Mayday Health operates a website providing information about abortion pills and links to abortion pill merchants across the United States. South Dakota law prohibits knowingly dispensing, distributing, selling, or advertising articles or substances intended for unlawful abortions, with violations punishable as a Class 6 felony unless medically necessary to preserve the pregnant female's life under SDCL § 22-17-5.1 and related statutes.

While it is undisputed that advertising abortion pills within South Dakota is unlawful, Mayday does not facilitate or offer to transfer abortion pills into South Dakota. Instead, it provides links to external websites where such pills may be obtained.

Legal analysis highlights a critical distinction between speech that proposes illegal activity and the abstract advocacy of illegality. Encouraging or facilitating criminal acts, such as offers to commit crimes or solicitation, may fall outside First Amendment protections. However, merely linking to websites selling abortion pills does not necessarily constitute such facilitation.

The defendants argue that Mayday's advertising could be integral to criminal conduct under aiding and abetting or solicitation theories, which require intent to promote or facilitate a crime. Nevertheless, precedent cases like U.S. v. Williams (2008) and Giboney v. Empire Ice & Storage Co. (1949) support the protection of certain speech.

Mayday's website also cites the World Health Organization, stating that abortion pills are safe and effective within the first 12 weeks of pregnancy.

This analysis suggests that site linking to abortion-pill-selling websites is likely protected by the First Amendment, even in states that generally ban abortions such as South Dakota.

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