When Abortion is Criminalized, Can Juries Nullify the Law?Roundup
tags: abortion, legal history, Fugitive Slave Act, Jury Nullification
Sonali Chakravarti is Professor of Government and director of the Allbritton Center for the Study of Public Life at Wesleyan University. She is the author of Radical Enfranchisement in the Jury Room and Public Life.
In the race to the bottom that has followed the Supreme Court’s June Dobbs v. Jackson Women’s Health Organization decision which overturned Roe v. Wade, fourteen states have enacted near-total bans on abortion. The most chilling are those which threaten imprisonment for anyone who assists with the procedure. The 2022 Texas statute, for instance, states that a doctor who performs an abortion for any reason other than saving the life of the mother may be punished by a minimum of five years in prison and a maximum sentence of life imprisonment. It is only a matter of time before a health care provider is charged under the new criminal statutes.
Not for the first time, Americans find themselves between two dissonant legal orders within the same country, with states and the federal government operating from different, irreconcilable visions of bodily autonomy.
The threat of fines and imprisonment for rendering assistance evokes another time that this happened, when, during the buildup to the Civil War, the United States enacted the Fugitive Slave Act of 1850. The central issue of that time was the legality of slavery, its expansion, and the federal government’s role in supporting it as an economic, political, and social endeavor. Similar to the issue of abortion, the Fugitive Slave Act revolved around the question of whether a person’s bodily autonomy could ever be superseded by another’s claim over them. Then as now, opposing camps felt emboldened to take radical legal and political action to further their cause. Given these general similarities, those fighting against the increased criminalization of abortion should seek inspiration from how abolitionists responded to the Fugitive Slave Act by not only waging a fearsome political battle to contest the legislation, but also by leveraging the power available to criminal juries—most notably juror nullification—to abrogate the power of unjust laws.
Jury nullification, also called “conscientious acquittal,” describes the power of jurors to declare a defendant “Not Guilty” for reasons apart from the evidence. In a recent article for the magazine Inquest, legal scholars Peter N. Salib and Guha Krishnamurthi argued for the use of jury nullification as a way for citizens to combat the post-Dobbs legal landscape. They see it as having significant upstream consequences: prosecutors will fear charging people with the most unpopular aspects of the anti-abortion statutes if juries are repeatedly unwilling to convict. I share their interest in this strategy, but believe that as a tool with complex legal and moral ramifications, nullification should be approached with an awareness of its history and purpose. In what follows, I draw on my knowledge as a scholar of juries to explore why jury nullification might be considered a much-needed political and legal tool for the current moment and offer strategies for potential jurors who are contemplating it.
By design, juries are afforded a unique role in the courtroom. The jury is meant to be the “voice of the people.” Juries navigate conflicting accounts of the law and balance the need for uniformity in punishment against the mandate to consider whether the particularities of each case might warrant exceptions. The power of the jury to nullify is the foundation of all jury responsibilities because it most directly captures how the function of jurors differs from that of judges. While judges often seek fidelity to the law, regardless of the potentially perverse outcomes, jurors can and must look beyond the letter of the law to deeper questions regarding the fairness of the outcome. They must consider the ways an enforced law fits with the aspirations of a democratic community to provide liberty and freedom for all while maintaining order.