Nullification in Abortion Prosecutions: An Equilibrium Theory

Abstract

The Supreme Court is poised to overrule Roe v. Wade. Doing so, it will rescind recognition of a fundamental constitutional right for the first time in nearly a century. In anticipation of Roe’s demise, multiple states have already enacted laws that will criminalize abortion once the abortion right is gone. More states will follow. Calls to action have gone out to those who can protect women’s rights: the President, Congress, left-leaning state governments, and more. We add another call—to jurors.

Jurors—and sometimes judges—have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe that conviction would be unjust. This power is called “nullification.” We argue here that nullification may have an important role to play in blunting the force of the most extreme anti-abortion laws. Historically, nullification has been a weak tool for counteracting overzealous criminalization. But abortion might be different. Unlike almost all other criminal prohibitions, broad criminal bans on abortion are extremely unpopular. 90% of Americans believe that abortion should be legal in at least some cases. Thus, we argue, nullification may be a much more serious threat here than elsewhere.

We analyze the upstream equilibrium effects of the nullification threat, arguing that it will deter prosecutors from bringing the most extreme charges. There is precedent for this: As criminal marijuana prohibitions grew steadily more unpopular, federal marijuana prosecutions fell dramatically. We suggest that the threat of nullification was responsible and that the same effect may obtain in the abortion context.

Keywords: abortion, Roe v. Wade, Casey v. Planned Parenthood, Supreme Court, jury nullification, nullification

JEL Classification: K10, K40