Nullification in Abortion Prosecutions: An Equilibrium Theory

72 Duke Law Journal Online (2022 Forthcoming)

U of Houston Law Center No. 2022-A-7

17 Pages Posted: 2 Jun 2022 Last revised: 13 Jun 2022

See all articles by Peter Salib

Peter Salib

University of Houston Law Center

Guha Krishnamurthi

University of Oklahoma College of Law

Date Written: May 16, 2022

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

Suggested Citation

Salib, Peter and Krishnamurthi, Guha, Nullification in Abortion Prosecutions: An Equilibrium Theory (May 16, 2022). 72 Duke Law Journal Online (2022 Forthcoming), U of Houston Law Center No. 2022-A-7, Available at SSRN: https://ssrn.com/abstract=4116481

Peter Salib (Contact Author)

University of Houston Law Center ( email )

4104 Martin Luther King Blvd.
Houston, TX 77204
United States

Guha Krishnamurthi

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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