Jurors Can Protect Abortion Access

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of abortion, the Fugitive Slave Act revolved around the question of whether a person’s bodily autonomy could ever be superseded by another’s claim over them.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.

The independence of the jury from interference by officers of the court—and its right to not be coerced by a judge—are long-established legal norms in common law. In 1670, when William Penn was charged for practicing his Quaker faith, the jury foreman, Edward Bushel, was imprisoned, denied food for two days, and issued a fine when he defied the judge’s order to find Penn guilty. When Bushel was brought before the Court of Common Pleas, the chief justice freed him and reaffirmed that jurors cannot be punished for the verdict they return. Bushel’s actions highlighted the necessary independence of the jury to reach its own conclusions about the validity of punishment. The case set the precedent in the common law tradition that juries retain the power to nullify for any reason, including mercy, compassion, or a belief that the law is unjust or being improperly enforced.

The power of the jury to nullify holds increased significance in times of intense political conflict. The Fugitive Slave Act not only imposed harsher punishments on those who interfered with the pursuit and capturing of enslaved people, it also empowered “commissioners” to kidnap escaped slaves and to use force as if they were officers of the peace. Should a commissioner refuse to execute a warrant for a fugitive slave, he could be fined up to a thousand dollars. Similarly, any person who attempted to “harbor or conceal” a fugitive could be fined that amount and face up to six months in prison if convicted in district court. Fugitive slaves, however, were not entitled to a jury trial, only to an administrative procedure that confirmed their identity and the legitimacy of the warrant for their apprehension.

The enactment of the Fugitive Slave Act lit a fire under abolitionists in the North. Abolitionists in Boston, for example, mounted a multipronged legal, political, and social strategy to consolidate support for the abolitionist cause among white citizens and free Black people to help formerly enslaved people establish new lives. They formed vigilance committees that provided money, supplies, and railway tickets to runaway slaves. They also held mass meetings—6,000 attended a rally in Faneuil Hall in October 1850—where attendees were told of the evils of slavery, the overreach of the Fugitive Slave Act, and what they could do as jurors should they be called to adjudicate a case, including the possibility of jury nullification.

Hundreds of fugitives in the Northeast fled to Canada after the Fugitive Slave Act was passed and other residents wondered if and when the federal government would expect enforcement of the act by local officials. It happened with the 1851 warrant for Shadrach Minkins, a formerly enslaved person who had been born in Norfolk, Virginia, and who had fled to Boston nine months earlier. He was working as a waiter at the time of his arrest by the Boston police. In his book Shadrach Minkins: From Fugitive Slave to Citizen (1997), Gary Collison writes that a group of Black citizens “burst into the courtroom, shoved the deputies aside, and seized the startled [Minkins]. Their footsteps thundered through the corridor, down the stairs, and out into Court House Square. The air filled with shouting and cheering. Then Shadrach Minkins’ rescuers raced with him through the streets to Boston’s West End—and disappeared.”

After such a brazen and dramatic rescue, Secretary of State Daniel Webster was determined that the Fugitive Slave Act not be flouted in his home state. He petitioned President Milliard Fillmore to issue a presidential proclamation reminding Boston’s law enforcement of their responsibility to uphold the act and commit military assistance. The Boston authorities complied with the demand, arresting more than ten people in connection with the Minkins rescue. Seven were indicted and faced fines of up to $2,000 and six months in jail, including James Scott, a Black clothing dealer, who was put on trial first. While the prosecution lined up witnesses to place Scott at the scene of the rescue, the defense team claimed he had not been there and, furthermore, that Minkins may not have been lawfully under the possession of his slaveowner and thus the warrant was invalid. The jury deliberated for twenty-one hours and could not reach a verdict, resulting in a mistrial. While a mistrial does not clear a defendant of charges in the way a not guilty verdict would have done, it is, in many trials of political significance, its own act of resistance. The outcome of a hung jury suggests that there was active disagreement in the jury room about the appropriateness of punishment and that neither side was willing to capitulate.

The prosecution was not deterred from enforcing the Fugitive Slave Act and went on to place the other rescuers on trial. An elder in Boston’s Black community and the leader of the rescue, Lewis Hayden, was tried next, and the evidence against him was stronger. The prosecution was able to secure testimony from an Irish cabdriver who said he had transported Hayden and Minkins the day of the rescue and had later been offered a bribe by Hayden to leave the city until the trial was over. Despite such testimony the jury again could not reach a verdict on any of the counts. Black lawyer Robert Morris was the next person to be tried for the rescue of Minkins. The defense brought a string of well-established witnesses to claim that Morris was a law-abiding citizen and a mere spectator in the crowd on the day of the rescue. In his concluding remarks, one of the defense attorneys tried to bring up the immorality of the Fugitive Slave Act directly, thus drawing a clear line to the power of nullification, but the judge curtailed the attempt. Still, the jury returned with a verdict of not guilty. Another man, Elizur Wright, would be tried for aiding a fugitive and the jury would be hung at the end of the first trial. When Wright was tried again, the jury returned a not guilty verdict ending the state’s attempts to enforce the Fugitive Slave Act in the Minkins case. With these outcomes the message to the prosecution was clear: it would be nearly impossible to find a group of twelve Bostonians who were willing to punish defendants who aided runaway slaves, no matter what the law said.

The case of the Christiana Uprising in 1851 provides another example of a jury, this time in Pennsylvania, refusing to convict and thereby circumventing the purposes of the Fugitive Slave Act. In that case Edward Gorsuch, a slaveholder in Maryland, was hellbent on using the Fugitive Slave Act to recover his “property,” four slaves who had escaped the previous year. He traveled to Pennsylvania, obtained a warrant for their capture, and secured the assistance of a federal marshal. Once in Christiana, an enclave in Lancaster County that was home to a community of former slaves, Gorsuch’s posse went from house to house attempting to remand the fugitives. They met armed resistance at the home of William Parker, a former slave and a leader of the community, who had a plan for thwarting the kidnapping of his brethren that included ambush, evasion, and hand-to-hand combat with Gorsuch’s militia. The former slaves were aided in their fight by white neighbors, including Castner Hanway, a local white miller who participated in the struggle and refused to follow the orders of the federal marshal. When Gorsuch confronted one of his former slaves in the melee, he was fatally struck with a club and the rest of his team retreated. Parker and the other fugitives headed north to Canada.

Forty-one people were indicted and charged with treason, including Parker and other fugitives in absentia. In addition to treason, the prosecutor charged them with distributing traitorous material encouraging others to break the law and with failing to heed the command of a federal marshal as the Fugitive Slave Act required. The prosecutor argued that Hanway, the first defendant to be tried, “has raised his hand without excuse or palliation against the freest government on the face of the earth.” The trial of Hanway received national attention, prompting famed abolitionist William Lloyd Garrison to proclaim, “The villains who would subvert Liberty in this country in the name of Law, are themselves the Traitors.” In the end the jury debated for only ten minutes before returning a verdict of not guilty and the state dropped the charges against the others.

The actions of the juries in the cases of the Minkins rescue and the Christiana Uprising hold lessons for our current moment, when we face disputes about the morality of the law versus the desire, or obligation, to help women safely terminate unwanted pregnancies.

The first lesson is about the importance of circulating information, not only about the issue at hand, but also specifically about the responsibility of jurors should they be called to serve. The abolitionist movement harnessed the power of mass meetings, print publications, and volunteer organizations to show how the legal apparatus of slavery should be challenged in multiple ways—including through the ballot box, taxation, and in the jury room. These were all aspects of a political (in contrast to a revolutionary) movement for abolition and the campaign gave potential jurors the legal concepts they needed for principled action in the courtroom. Today’s abortion rights activists are using a variety of channels, including protests and social media, to spread awareness about restrictive legislation and opportunities for direct involvement in the cause, including financial and medical assistance, but they might expand their focus to the civic education of jurors. The time has come for widespread public discussion about the considerations jurors should take into account if they are asked to adjudicate an abortion case; including the role of jurors to consider the justness of the law itself, not just the evidence presented in the case.

Such expansive education is necessary for jurors to navigate the process of jury selection. Due to the secrecy and lack of knowledge that currently surrounds the legitimate use of nullification, jurors who are overly enthusiastic about nullification are quickly dismissed by judges and attorneys because they are perceived as unwilling to follow the law. If we instead educate jurors about the history of jury nullification and the dangers of misuse, they would be able to convey an accurate and thoughtful understanding of the concept to the court. Jurors should never lie about their ability to be impartial, but they could learn how to acknowledge the possibility of nullification when asked about it while also, in good faith, committing to the expectations of a fair trial. A coherent intellectual position for nullification has been well established in U.S. history. Even in the eighteenth century, when the question arose in the 1788 Pettis v. Warren case about whether a juror who was ideologically opposed to slavery could be seated in a case involving a former slave, a Connecticut court found it was not required for jurors to “be ignorant of the cause, or unopinionated, as to the rules and principles by which it is to be decided.” Jurors must bring their knowledge of an issue, in its complexity, to the jury room and rightfully incorporate it into the deliberative process. The adversarial process demands nothing less.

A second lesson from this history is that judges, to put it bluntly, hang on to the old legal regime for too long. In the era of the Fugitive Slave Act, there were prominent northern judges, including Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court, who said that they opposed slavery in principal and engaged in eloquent handwringing about the conflict between the law and morality. Yet they nonetheless applied the law as it was given to them and saw no other path forward. For resistance to the law in particular cases, the jury is necessary. They must be the voice of the people in an otherwise closed system of crimes and punishments. In times of legal transition, juries should be understood as the vanguard in navigating the relationship between the norms of the community and the legitimacy of the current law.

This interplay between juries as community representatives and the presiding legal regime is captured by the experiences of Henry Morgantaler, a Canadian physician who faced three criminal trials in the 1970s for running abortion clinics in Quebec despite the nationwide ban. Morgantaler argued that the Canadian ban relied on an anachronistic account of the danger to the mother and that his medical actions should not be criminalized despite the evidence against him. Each time the jury declined to convict. Despite the outcomes of these highly publicized trials, in 1976 the Supreme Court of Canada affirmed the ban.

Morgantaler would later be instrumental in changing abortion laws in the country, but the contemporaneity of the jury’s multiple acquittals and the high court’s ban shows how jury decisions may provide a critical stopgap to prevent unjust punishment when there is a sharp divide between the court and the people experiencing the effects of a law, as may be the case in the United States today. A recent study by the Proceedings of the National Academy of Sciences shows that the Supreme Court’s ideological position is more conservative than three-quarters of Americans. Similarly, the Pew Research Group found that 61 percent of Americans believe that abortion should be legal in all or most cases.

Educating jurors about nullification is not without costs, though. First, nullification invites jurors to apply a logic to the verdict that does not emerge solely from the evidence, a proposition that could be a slippery slope to jurors thinking they have more latitude when it comes to their actions in the jury room, including discounting the presumption of innocence and other important procedural standards during the trial. Both education about jury nullification and its application require a level of nuanced understanding and discretion that we do not frequently associate with political life.

Second, more extensive education about nullification will certainly lead to it being used for a variety of ends, even those that push against the best interests of democratic life. For example, Stewart Rhodes, head of the far-right Oathkeepers, faces sedition charges for his actions leading up to the January 6 insurrection at the Capitol. He has claimed that he was lawfully leading a militia to further the cause of the president. Additionally, his defense team has said they will argue that he was not at the Capital that day and did not lead others to break the law. Such a defense strategy thus provides two paths to a not guilty verdict: jurors who are sympathetic to the militia argument or to Trump’s assertions that the election was stolen may consider nullifying because they do not want to punish Rhodes for his actions despite the evidence. Other jurors may say that they were not convinced that the evidence proved the state’s case “beyond a reasonable doubt,” as is required for a guilty verdict. Jury decisions are thus microcosms of democratic decision-making and one cannot give more power to the people with one hand and then pull it back with the other if the result is not desirable.

Still, should heath care workers be charged under anti-abortion statutes such as the ones in Idaho and Texas, jurors should know that, alongside their oath to render a “a true verdict according to the law and the evidence,” they always retain the power to issue a not guilty verdict. Just as the Kansas referendum outcome showed that the electorate was not as anti-abortion as the Republican leadership had anticipated, a jury trial may reveal the boundaries of jurors’ willingness to punish medical professionals for assisting with an abortion, even in states that have passed strong anti-abortion legislation. The power of nullification does not negate the responsibility jurors have to be impartial—that is, open to the weight of the evidence and willing to consider both verdicts. Prejudice and vindictiveness never provide compelling reasons to decide a case. Yet jurors must also consider what their verdict communicates to the prosecution and the public about the crime and the law in question. Who will be injured by a guilty verdict? Who will be injured by a not guilty verdict? Novelist and critic John Gardner once reflected, “Every time you break the law you pay, and every time you obey the law you pay.” He was talking about his conflicted relationship to authority, but his words also help us think about jury nullification. The enforcement of an illegitimate statute has moral costs for jurors, but so does the suspension of that enforcement through nullification.

When faced with evidence documenting the actions of health care workers who performed an abortion not sanctioned by the state, jurors must consider the evidence and the language of the law—but they should not ignore the qualms they may have about the consequences of a guilty verdict. To do so would be an abdication of the responsibility of the jury to be more than a technocratic wing of law enforcement. No legal system can be entirely closed to outside logic and retain its legitimacy.

The jury, built upon elements of chance and representation, is the best way to determine exceptions to the law, especially on an issue such as abortion access, which intersects with the liberties of multiple parties at the same time. The juror who declines to enforce the law in a particular instance—the juror who nullifies—may experience her own type of loss that evinces a deeper breach than the one between upholding the rule of law and chaos. An acquittal based on the jury’s perceptions of a law as inhumane or at odd with the needs of the community may never feel triumphant. It is not, properly speaking, a political victory by other means. Rather, it is the empty set, the null outcome, that emerges when we fail to see ourselves—as citizens and as women—reflected in the laws that we are tacitly expected to authorize by participating in democratic life.