Nullification in Abortion Prosecutions (Guest Post by Peter N. Salib and Guha Krishnamurthi)

 by Peter N. Salib and Guha Krishnamurthi

The leaked draft of the Dobbs opinion threatens a drastic curtailment of women’s reproductive rights. Several states already have trigger laws that will criminalize abortions. Others are passing more restrictive laws that will impose criminal and civil liability on providers and receivers of abortion services. This will be a sea change, and indeed a tide against popular sentiment. 

We think that jury nullification may have a role to play, even if limited, in securing reproductive rights. Below we proffer a brief explanation how, but a longer version of our argument is available here.

As we use it here, nullification is a decision by one responsible for determining the verdict of a trial to disregard the evidence presented and refuse to render a particular verdict. Most commonly, we hear of jury nullification, where (some) jurors refuse to find a defendant guilty. Consider, for example, a case where the defendant has factually violated a law forbidding the provision of water to people in the desert. Here, the jury may refuse to convict not because they doubt the evidence, but because they believe conviction would be unjust.

Jury nullification is generally considered rare. Courts disfavor explicitly recognizing the jury’s ability to nullify—restricting counsel’s ability to make nullification arguments, instructing the jury to ‘follow the law,’ and dismissing jurors who indicate a proclivity for nullification. Moreover, many jurors may not know about their ability to nullify—at least not in those terms. And consequently, the scholarly consensus seems to be that nullification, either by the jury or judge, is rare.

But we think that nullification, construed broadly, is more common than usually assumed. For any acquittal (or hung jury), it is plausible that some jurors cast their vote because they viewed the law or the particular prosecution as illegitimate. This story is especially plausible if the operative law is unpopular. Indeed, criminal lawyers and judges, behave as if nullification is common, treating jury selection—and its screens for juror bias—as perhaps the most important stage of the trial process.

Nevertheless, we agree with the conventional wisdom that nullification is usually, at best, a very weak headwind against unjust criminal laws. That is because few potential jurors actually oppose most laws arguably labelled as unjust. For example, opinion polling shows that the death penalty and nearly all drug criminalization enjoy supermajority support.

This is where abortion might be different. Recent polling from the Pew Research Center shows that 61% of Americans think abortion should be legal in most or all cases. On net, 90% of Americans think that abortion should be legal in at least some circumstances. And a large supermajority of Americans treats abortion as legitimate under the particular sets of circumstances in which it is usually sought. States’ new abortion bans do or will criminalize abortions in many of the exact circumstances in which the public supports them most. 

Consider Texas’s “trigger” law on abortions—a near total ban—set to automatically go into effect 30 days after Roe is overturned. What is the likelihood of drawing a juror who would consider nullification in a prosecution under this statute? In many, many possible cases, the likelihood seems high. Nearly 93% of abortions occur in the first 13 weeks of pregnancy. Thus, in 93% of cases—nearly all potential prosecutions—over 40% of potential jurors, on average, will view the prosecution as unjust, no matter the other facts. And an additional 22%—for a total of over 60%—might view it as such, depending on the circumstances. The odds of nullification rise commensurately as the prosecution becomes more extreme. In cases involving rape, serious fetal disability, or serious maternal health risk (though falling short of death or major disability), almost all jurors will view conviction as either certainly or potentially unjust.

Prosecutors will take note. This is critical. It is not the rate of actual nullifications that matters, but rather the equilibrium effects that the probability of nullification generates. Actual nullification may happen rarely precisely because prosecutors foresee its possibility and adjust their behavior accordingly. Given the above polling, how likely are prosecutors to ask a jury to convict a doctor for performing a 6th-week abortion of a fetus with a deadly chromosomal disorder? If prosecutors apprehend the likelihood of nullification, we think it unlikely. What about prosecuting a 14th week abortion to allow the mother treatment for a serious, but likely non-fatal, cancer discovered during the course of the pregnancy? Here again, if prosecutors understand the possibility of nullification, we think it would be unlikely. Prosecutions are more likely regarding abortions performed for family planning reasons. Though even here, early-term cases may be hard to win.

Prosecutors in red states may feel political pressure to bring at least some abortion prosecutions. But given the factors discussed above, we suspect that they will prefer cases where public opinion favors them: later-term procedures without extenuating circumstances. They will likewise prefer stronger factual cases, since jurors’ willingness to nullify may be magnified by shaky facts.

Much of the above is speculative, but it’s not unprecedented. We think marijuana prosecutions serve as an analogy. Between 1999 and 2019, public support for keeping marijuana illegal dropped by roughly half—from 63% to 32%. Over that same period, the number of federal marijuana cases collapsed, dropping by over 86%. Inferring causation here is difficult, but we think the best explanation for the change includes the rising probability of nullification. When nearly 70% of potential jurors do not think a drug should be illegal at all, securing a unanimous conviction for its possession starts to look like a longshot.

Critically, this picture depends on jurors’ understanding their ability to nullify. They need not have a formal, bookish understanding of nullification. Rather, it is enough that, when posed with the choice to convict or not, they in fact realize that they can vote their conscience without repercussion. Thus, those opposing abortion prosecutions should engage and teach the public about the power of nullification.

Nullification will not blunt the impact of Dobbs entirely. Professor Dorf has raised important points of skepticism about nullification’s potential: Unlike marijuana laws, abortion providers are known to the public. So even with the possibility of nullification in a singular case, the fact that such providers may face multiple prosecutions will tend to reduce the effect of nullification. Furthermore, jury nullification may not have much impact when civil liability is imposed on abortion providers. And the totality of legal threat may chill many abortion providers into closing their doors entirely. These are compelling points; Professor Dorf may very well be right. But there are still situations in which nullification can have impact.

First, if a state’s ban on abortion allows for a time period or exceptional circumstances in which abortion is allowed, then nullification may serve its useful function for abortion service providers. For example, consider a “fetal heartbeat” law. Suppose a woman comes to an abortion service provider and expresses an unqualified, unmitigated desire for an abortion. The abortion provider then proceeds through the mandated procedure to determine whether there is a fetal heartbeat. In so doing, however, the abortion provider does not endeavor to actually determine whether there is a fetal heartbeat and logs that such heartbeat was not present. If the public opinion disfavors such a law, it will be difficult to successfully bring criminal or civil claims against the provider. Such a case would hinge on a factual question—the province of a potentially nullifying jury.

Additionally, where there is a total ban on abortion, as Professors Rachel Rebouché, Greer Donley and David S. Cohen observe, states may criminalize individuals who go out of state to seek abortion services. In these cases, the state may prosecute individuals for leaving the state to obtain abortion services—perhaps charging attempted murder (of the fetus, which by state law is determined to be a human life). States may also criminalize the use of medication for an abortion (within the state’s borders). In these cases, if public opinion disfavors such prosecutions, nullification can have real impact in allowing individuals to seek abortion services.

Nullification is undoubtedly a weapon of the weak. But we are in a bind. Five Justices are poised to disrupt a half century of expectations, and there is little political recourse. It is precisely in such cases that the jury can serve as a bulwark against the injustices of the state(s).