Posted July 1, 2022

Temple law expert addresses legal ramifications of Roe vs. Wade decision

As one of the nation’s leading reproductive law scholars, Beasley School of Law Interim Dean Rachel Rebouché has frequently been cited by mainstream media outlets in the aftermath of the Supreme Court’s decision to overturn Roe v. Wade.

Headshot of Beasley School of Law interim dean Rachel Rebouche.
Photography By: 
Ryan S. Brandenberg
Rachel Rebouché is a leading scholar in reproductive health law, feminist legal theory, and family law.

The Supreme Court’s controversial decision to overturn Roe v. Wade set off a wave of mixed reaction and protests across the nation.

Rachel Rebouché, interim dean of Beasley School of Law and the James E. Beasley Professor of Law, has been weighing in on the decision’s legal implications and highlighting a looming fight over restricting abortion pills.

In a Time magazine article, Rebouché said Attorney General Merrick Garland’s mention of the FDA approval of the drug is a nod toward the federal preemption argument. This argument is based on the premise that where federal and state laws conflict, the federal law prevails.

“Medication abortion is going to take up a lot of our thinking and time and advocacy on both sides of the question,” Rebouché stated. “I think what a lot of people are thinking is it’s a pretty key aspect to what abortion services actually look like moving forward.”

Rebouché penned a New York Times op-ed in which she addressed the potential impact of having increased availability to abortion drugs.

“Medication abortion is not a magic solution to the likely end of Roe, but its increasing availability can blunt some of the fallout if abortion regulation returns to the states. Because the reality is that abortion pills will be available to people in the United States—no matter what the Supreme Court does and regardless of whether states give permission,” Rebouché wrote.

In a Crain’s Detroit Business article, she addressed states possibly trying to find ways to block access to the drugs.

“If what we think will happen actually happens, the 26 states that ban abortion will also ban medication abortion. To get a medication abortion legally, you will need to be in a state that permits telehealth for abortion or be in a state where a provider can hand you the abortion pill,” Rebouché said, elaborating that people will likely take matters into their own hands to get access to abortion pills and pointing to an uptick in online orders for the medication following passage of Texas’s six-week abortion ban.

The Supreme Court decision may also cause red states to ban traveling out-of-state for abortions. In a PJ Media article, Rebouché said the move clears the way for states to restrict out-of-state abortion because “any travel ban would be premised on the idea that a state can ban abortion.”

However, Rebouché said the path to pass a law that outright criminalizes out-of-state abortions is an uphill battle because such a law would likely face several legal hurdles. Justice Brett Kavanaugh has hinted that he will support the constitutional right to travel across state lines for abortions. Fortune noted the constitutional right in question is likely the Dormant Commerce Clause, which prohibits states from passing legislation that impacts interstate commerce.

“Abortion is a service. It’s clearly commerce,” Rebouché told Fortune.

In a News Nation article, she discussed a key difference between the final Supreme Court document and the leaked draft. While the opinion by the court was similar to what was in the draft, this time Justice Thomas hinted in a concurring opinion the court could next turn its attention to court cases that legalized same-sex marriage and contraception.

“I think if Justice Thomas had his way, that’s certainly what the court would do next, it would look at all the cases that have been decided under the 14th Amendment that touch on intimacy, privacy, liberty, family relationships, and it would review those decision with the same kind of analysis that Justice (Samuel) Alito applied,” Rebouché said.

A full listing of all the articles and radio segments that have featured Rebouché can be found below.

Abortion pills will change a post-Roe world | Opinion, The New York Times, June 24
Fight over abortion pills takes shape in post-Roe America, Vanity Fair, June 26
Merrick Garland’s mention of the FDA hints at one possible way to fight restrictions on abortion pills, Time, June 24
Abortion on federal lands, Full Frontal With Samantha Bee, June 24
How does the Supreme Court’s Roe v. Wade decision affect abortion pills?, The Boston Globe, June 24
Justice Brett Kavanaugh hints he will support constitutional right to travel across state lines for abortions, Fortune, June 24
20 ways the Supreme Court just changed America, Politico, June 24
A new legal battle post-Roe: Can states ban FDA-approved abortion pills?, GRID, June 24
One key difference between final SCOTUS opinion, leaked draft, News Nation, June 24
Can the FDA’s approval of an abortion pill stop states from banning it?, Mother Jones, June 24
Roe v. Wade overturned: Temple Law Professor Rachel Rebouché on what Supreme Court decision means, CBS Philly, June 24
Some red states looking into banning travel out of state for abortions, PJ Media, June 25
Supreme Court overturns Roe v. Wade, What does that mean for the future of abortion access and how did we get here?, KPCC 88.9 (Los Angeles NPR Affiliate), June 24
Roe v. Wade was overturned. Here’s what’s next for America, KYW Newsradio, June 24
Progressive officials in Southern cities vow to protect abortion access, Facing South, June 24
Some states may try to ban abortion beyond their borders, WBUR, June 27
Supreme Court’s Roe ruling tees up fight over abortion pills, Crain’s Detroit Business, June 27

Additionally, Professor of Law Laura Little discussed the landmark ruling in a FOX 29 TV segment.