Nullifying Dobbs

The state of play for abortion rights should be well known by now. The Supreme Court of the United States has overruled Roe v. Wade, ending any recognition of a constitutional right to terminate a pregnancy. Several Republican-led states prepared in advance for this outcome, passing “trigger laws” that would make abortion illegal upon Roe’s demise. Other states have acted quickly since the court’s decision, making abortion a criminal offense. Others will follow soon. Many of these laws are draconian: Some ban abortion very early in pregnancy — sometimes from the outset. Some lack exceptions for rape, for incest, or for serious danger to the mother. The laws are also unpopular, as the politics of abortion are beginning to show. In recent weeks, reliably red Kansas voted in double digits against amending its state constitution to allow criminal bans on abortion.

Under conditions like these, we have recently argued, a legal avenue called jury nullification, also known as conscientious acquittals, may have a role to play in securing reproductive rights. Nullification occurs when a legal decisionmaker refuses to convict a defendant, despite factual evidence of the defendant’s guilt. The most common version is jury nullification, wherein at least some jurors take this approach. Consider a recent, real-life example: In 2019, federal authorities in Arizona prosecuted Scott Warren, a humanitarian aid worker, under a law forbidding the “harboring” of border-crossing migrants in the Arizona desert. There was no serious dispute that Warren had done exactly that — by sheltering and providing them with water. Yet the jury acquitted, presumably after coming to the conclusion that Warren’s actions, though illegal, were not unjust or deserving of punishment.

Most scholars regard jury nullification as a rare phenomenon in that it seldom happens. The law imposes barriers against it. Courts often forbid lawyers to inform jurors of their ability to nullify. They instruct jurors that their duty is to follow the law, regardless of their own moral commitments. And if a juror indicates that they plan to nullify, that juror is usually dismissed from service. Moreover, jurors might not want to nullify in many cases, even if they knew they could. Despite growing interest in criminal reform, most criminal prohibitions — and criminal penalties — remain quite popular. Nearly all drug prohibitions, for example, enjoy supermajority support.

Yet in prosecutions brought under this harsh new crop of abortion laws, we think nullification may have a larger role to play. Consider first that nullification only requires one juror to hold out. Criminal convictions must be unanimous, as the Supreme Court recently held in Ramos v. Louisiana. Thus, if even a single juror refuses to convict because they believe the law — as applied in the case before them — is unjust, nullification has occurred.

Recent polling suggests that, for many abortion prosecutions, such jurors would be common. The Pew Research Center has recently found that 62% of Americans think abortion should be legal in most or all cases. A full 90% of them 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. Thus, for a large portion of the cases that could be brought under these new laws, prosecutors may have trouble assembling a group of jurors willing to unanimously convict.

Texas’s new criminal ban on abortions, which automatically took effect 30 days after the judgment issued in the Supreme Court’s decision overturning Roe, offers a case study. This is a near-total ban on abortions that criminalizes providers without exceptions for early-term procedures, rape, incest, or fetal defects. The law’s exception for the health of the mother is quite narrow, applying only when the mother would otherwise die or have a “major bodily function” seriously impaired. And the penalties are harsh: The maximum prison sentence is life imprisonment.

How likely is Texas to be able to find jurors to convict under such a law? In the vast majority of possible prosecutions, it may be difficult. Over 90% of abortions take place within the first 13 weeks of pregnancy. Over 40% of Americans — and thus of potential jurors — think that early-stage abortions should always be allowed, no matter the other facts. When extenuating circumstances like rape, serious fetal defect, or serious maternal health risk, nearly all potential jurors think that abortion should be an option. With numbers like these, the probability of a given jury ending up containing a potential nullifier — and again, it only takes one — is substantial.

The possibility of nullification here is serious enough that it might in fact be exactly that — the possibility, not actual nullifications — that matters most. Prosecutors want to win their cases, and they adjust their strategies accordingly. The common approach to maximizing win rates is choosing to bring cases only with very strong factual records. But for abortion cases, prosecutors will have to consider not only the facts, but also potential jurors’ views about what is just. This may end up dramatically shaping the slate of cases that prosecutors choose to bring. Given the above polling figures, bringing criminal charges for aborting an early-stage pregnancy of a fetus with a deadly genetic disease would be unwise. So too for an abortion that was necessary to allow the mother to be treated for a serious, but likely non-fatal, cancer discovered during her pregnancy. Even prosecutions of abortions performed for family-planning reasons may be difficult to win, if they were performed relatively early in the pregnancy.

This is not to say that no prosecutions will be brought. Indeed, prosecutors in red states might bring precisely the kind of hard-to-win cases just described due to political pressure. Consider the recent case, in the aftermath of Dobbs v. Jackson Women’s Health Organization, of a 10-year-old girl from Ohio who was raped and consequently impregnated. Ohio had passed a fetal heartbeat law in 2019 that took effect after Dobbs. The 10-year-old girl was adjudged to be 6-weeks-and-3-days pregnant, and as a result the 10-year-old girl was unable to obtain abortion healthcare in Ohio. She then obtained an abortion in Indiana, where abortion restrictions had not yet taken effect.

Thereafter, the Indiana attorney general publicly stated that the doctor who provided the abortion to the 10-year-old victim failed to comply with reporting laws and opened an investigation. He further mused that he could charge the doctor for intentionally failing to report such a case and look at her licensure. It’s precisely in such extreme, shameful cases where we envision jury nullification serving as a check on radical political actors. (Indeed, these cases may not be so rare. According to a report by the Guttmacher Institute, which The New York Times cited in connection to the Ohio case, in 2013, more than 7,000 girls age 14 or younger were pregnant, and about half terminated those pregnancies through abortion.)

Thus, we expect the effect of nullification on abortion prosecutions to be twofold. First, it will reduce the range of cases that will be brought. Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges. Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases. This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification. Marijuana prosecutions are a relevant precedent. In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half. Today, only about a third of Americans approve of such laws. Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%. We think that this was not a coincidence. As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular. Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself.

Our picture of jury nullification depends on jurors’ willingness to nullify — and thus to some extent on their understanding that they can do so. It is thus worth stating the facts here: Nullification is not a crime. It is not a civil offense. There is no punishment or penalty for nullifying. On the contrary, the jury’s power to refuse conviction when justice so demands is arguably what gives the jury system its moral force. Via this power, juries act as a popular check by ordinary citizens against the carceral power of government. 

Nullification cannot and will not fix everything. Nullification itself comes at the end of the criminal process. The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating. Nullification cannot directly alleviate those harms. Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process. But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment.

Additionally, abortion providers are not exactly like marijuana dealers. Their identities are publicly known, making them easier targets for multiple prosecutions. And they are more risk-averse — likely to simply close down than face even the possibility of criminal penalties. Moreover, some states, including Texas, have enacted civil as well as criminal penalties for abortion. Because civil cases can be decided by a judge, via a mechanism called summary judgment that bypasses the jury, the prospect of nullification may carry less weight in them.Consequently, both providers of abortions and women who seek them still face real risks.

Nevertheless, nullification might change outcomes in a variety of cases. Here are two more contexts where we think nullification could matter. First, in murky cases, nullification might tip the scales in favor of abortion providers. Consider a state that forbids abortions only after a fetal heartbeat is detected. This raises the possibility of evasion by providers for relatively early-term procedures. They may simply not try very hard to detect the heartbeat. If faced with the prospect of a very anti-abortion jury, the provider might not risk the gamble of muddying the waters so. But the probability of nullification might be just enough to make such tactics seem sufficiently safe to try.

Second, as others have observed, some states may attempt to criminalize abortions occurring — in full or in part — outside their borders. They may punish their own citizens for travelling out of state to get an abortion or for ordering medical abortifacients from states that will send them across state lines. They might go as far as punishing anyone who even supports such acts — including by paying for them. Some Texas legislators have already threatened as much. Eleven of them recently sent a letter to the Dallas office of the law firm Sidley Austin threatening “consequences,” including criminal liability, for reimbursing travel for employees seeking abortions outside the state. Actors like these — women seeking abortions in other states, out-of-state activists supporting them, global employers seeking top talent — may not be as risk averse as in-state abortion providers. And insofar as they are willing to risk the ire of Republican legislators, nullification may offer some protection.

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment. The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans. Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

_{Image: Douglas Muth/Flickr}

Contributors

Peter N. Salib Peter Salib is an assistant professor at the University of Houston Law Center.

Guha Krishnamurthi Guha Krishnamurthi is an associate professor at the University of Oklahoma College of Law, working in criminal law and procedure, constitutional law, and antidiscrimination law.

Topics

• Culture & Politics
• Decarceral Pathways
• Law & Policy

Tags

• abortion
• criminal law
• criminal legal system
• jurors
• jury nullification
• jury trials