# Anti-abortion laws and Jury Nullification
**URL:** https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001
**Category:** Great Debates
**Tags:** roe\_vs\_wade\_abortion
**Created:** [June 28, 2022, 12:02am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001 "2022-06-28T00:02:51Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)
#### Post date: [June 28, 2022, 12:02am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/1 "2022-06-28T00:02:51Z")
Here is an article I found to get things started.
> **[Nullification in Abortion Prosecutions (Guest Post by Peter N. Salib and Guha...](http://www.dorfonlaw.org/2022/05/nullification-in-abortion-prosecutions.html)**
>
> by Peter N. Salib and Guha Krishnamurthi The leaked draft of the Dobbs opinion threatens a drastic curtailment of women’s reproductive r...
The author claims that although jury nullification is generally very rare, abortion may be an exception. I agree, for several reasons.
- Anti abortion laws are widely viewed as unjust, [even in the most conservative states at least 1/3 of the population](https://www.pewresearch.org/religion/religious-landscape-study/compare/views-about-abortion/by/state/) support a woman’s right to choose, and it just takes 1 out of 12 to result in a mistrial.
- Abortion is a very high profile issue, the possibility of jury nullification is going to be discussed in the mainstream media, so most jurors are going to be aware that it is an option.
- Pro choice is viewed as a strong moral and patriotic stance among those who support it, such that it may outweigh the patriotic duty of being a disinterested juror ruling only on the facts.
- Purely anecdotally I am generally opposed to jury nullification but am rethinking my position with respect to this issue. Presumably I am not alone
Other points made by the author include the fact that jury nullification is that it is not necessary of jury nullification to work in every case, in order for it to have a profound effect. If a large percentage of slam dunk anti-abortion cases result in mistrials, then prosecutors might decide its not worth pursuing them, not to mention the [possibility of prosecutors themselves](https://abovethelaw.com/2022/05/virginia-has-a-bittersweet-failsafe-if-roe-is-overturned/) acting to nullify the laws.
On the other hand even if most criminal anti-abortion judgments never result in convictions that is still going to drive abortions underground, since no provider is going to want to open shop with the certainty of unceasing legal jeopardy and the risk that one of them gets through.
Debate topics include:
- How large an effect will jury nullification have on those states in which it is illegal?
- How will abortion opponents attempt to counter it. (I assume that they will ignore their own [hypocrisy](https://www.latimes.com/archives/la-xpm-1990-01-27-me-519-story.html))
- If you were a member of a jury pool in an anti abortion case what would you do? (assuming the mods don’t decide that this is too much IMHO for GD)
- Anything else as relates to the topic.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [June 28, 2022, 12:14am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/2 "2022-06-28T00:14:18Z")
Jury nullification is a large part of the Morgentaler saga in Canada. Three Quebec juries acquitted Dr Morgentaler, as did one Ontario jury. Although the Supreme Court unanimously disapproved of jury nullification, it had the effect of ending prosecutions for abortion in Quebec.
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### Author:  [@Karen\_Lingel](https://boards.straightdope.com/u/Karen_Lingel)
#### Post date: [June 28, 2022, 2:27am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/3 "2022-06-28T02:27:29Z")
I wouldn’t have any problem nullifying any laws that I don’t think the government has any business making. For instance, maybe I think the speed limit on the Dumbarton Bridge should be 65 mph instead of 55 mph, but I do acknowledge that the government has the right to set the speed limit, so I would vote to convict someone who drove 60mph.
But I don’t think the government has any business making laws requiring people to return runaway slaves, prohibiting safe medical procedures, or outlawing sodomy.
My problem is that, if asked, I would say exactly the above and would be thrown off the jury.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [June 28, 2022, 3:01am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/4 "2022-06-28T03:01:16Z")
I get “website blocked due to malware” when I click on the OP’s link.
What laws are they saying will be nullified? I can’t answer without knowing what a jury is supposed to be against, or for, or whatever.
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### Author:  [@Riemann](https://boards.straightdope.com/u/Riemann)
#### Post date: [June 28, 2022, 4:09am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/5 "2022-06-28T04:09:38Z")
> [@Buck\_Godot](#):
>
> - How large an effect will jury nullification have on those states in which it is illegal?
> - How will abortion opponents attempt to counter it.
Even if criminal prosecution is ineffective, does that do much to address the main problem of availability? I guess it would facilitate supply of pills. But it’s not going to mean clinics will reopen.
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### Author:  [@Smapti](https://boards.straightdope.com/u/Smapti)
#### Post date: [June 28, 2022, 4:10am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/6 "2022-06-28T04:10:30Z")
> [@Buck\_Godot](#):
>
> If you were a member of a jury pool in an anti abortion case what would you do? (assuming the mods don’t decide that this is too much IMHO for GD)
I would honestly answer any questions asked of me during voir dire, and, if selected, I would vote to acquit.
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### Author:  [@Velocity](https://boards.straightdope.com/u/Velocity)
#### Post date: [June 28, 2022, 5:11am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/7 "2022-06-28T05:11:28Z")
Then it sounds to me that your honesty is precisely what would (indirectly) lead to an abortionist being convicted of abortion.
Although, getting into legal territory, doesn’t a jury nullification require unanimity? If just 1 juror stalwartly holds out and refuses to convict, then it results in a hung jury and a re-trial, right, as opposed to acquittal?
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### Author:  [@Smapti](https://boards.straightdope.com/u/Smapti)
#### Post date: [June 28, 2022, 5:16am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/8 "2022-06-28T05:16:15Z")
> [@Velocity](#):
>
> Then it sounds to me that your honesty is precisely what would (indirectly) lead to an abortionist being convicted of abortion.
Not if the prosecutor doesn’t ask me any questions that would compel me to answer that I’d be pro-nullification. The last time I was in a jury pool, more than half of the jurors (myself included) didn’t get asked any questions more involved than a “hands up if you know anyone in this courtroom/know anyone who’s been a victim of this type of crime” type thing.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [June 28, 2022, 7:02am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/9 "2022-06-28T07:02:34Z")
> [@Smapti](#):
>
> Not if the prosecutor doesn’t ask me any questions that would compel me to answer that I’d be pro-nullification.
Don’t they usually ask a broad question like, “Is there any reason you feel like you would not be neutral?”
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### Author:  [@Smapti](https://boards.straightdope.com/u/Smapti)
#### Post date: [June 28, 2022, 7:08am UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/10 "2022-06-28T07:08:00Z")
> [@Whack-a-Mole](#):
>
> Don’t they usually ask a broad question like, “Is there any reason you feel like you would not be neutral?”
I don’t recall if I was asked such a question, but I do remember one person being dismissed from the pool because he said that only God can judge someone guilty or not guilty. The only time I was personally addressed by either of the attorneys was the prosecutor asking if I was paying attention because I guess he thought I was distracted. I wasn’t. I wound up on the jury in the end.
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### Author:  [@Wrenching\_Spanners](https://boards.straightdope.com/u/Wrenching_Spanners)
#### Post date: [June 28, 2022, 12:00pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/11 "2022-06-28T12:00:08Z")
Who is the defendant? Is it the person who performed the abortion, or the woman who had the abortion? My thought is that there would be much more prosecutorial weight brought against a person who had performed an abortion than a woman who had undergone one. So more questioning of potential jurors and more assessment of whether their pro-choice politics could affect their decision as a juror. Also, the woman who had undergone the abortion is more likely to be portrayed as a sympathetic figure than the person performing the abortion.
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### Author:  [@jjakucyk](https://boards.straightdope.com/u/jjakucyk)
#### Post date: [June 28, 2022, 1:25pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/12 "2022-06-28T13:25:23Z")
> [@Karen\_Lingel](#):
>
> My problem is that, if asked, I would say exactly the above and would be thrown off the jury.
> [@Whack-a-Mole](#):
>
> Don’t they usually ask a broad question like, “Is there any reason you feel like you would not be neutral?”
In such cases I would expect potential jurors to be asked “do you know what jury nullification is and do you support or not support it?” and anyone who answers yes would be excluded from that pool without a second glance.
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### Author:  [@Riemann](https://boards.straightdope.com/u/Riemann)
#### Post date: [June 28, 2022, 1:32pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/13 "2022-06-28T13:32:58Z")
> [@Karen\_Lingel](#):
>
> But I don’t think the government has any business making laws requiring people to return runaway slaves, prohibiting safe medical procedures, or outlawing sodomy.
>
> My problem is that, if asked, I would say exactly the above and would be thrown off the jury.
> [@Smapti](#):
>
> I would honestly answer any questions asked of me during voir dire, and, if selected, I would vote to acquit.
I guess I’m somewhat mystified by a code of ethics that believes jury nullification is absolutely the ethically right thing to do with an evil unjust law, but that telling a necessary lie to put yourself in a position to nullify is not something you’d be willing to do.
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### Author:  [@Procrustus](https://boards.straightdope.com/u/Procrustus)
#### Post date: [June 28, 2022, 2:22pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/14 "2022-06-28T14:22:59Z")
> [@jjakucyk](#):
>
> In such cases I would expect potential jurors to be asked “do you know what jury nullification is and do you support or not support it?” and anyone who answers yes would be excluded from that pool without a second glance.
They tend not to even acknowledge the concept by name. What they do say in the jury instructions is something like “you have a duty to follow the law as instructed, even if you personally don’t agree with the law.” In almost every case someone will ask jurors during voir dire if they would have any trouble following the law. And, of course, you’d take an oath. So, depending on how seriously you take some things, it could be a predicament. I’d love to vote to acquit, but it’s not as easy as laying low and hoping no one asks you the magic question. You’d have to violate the rules to do it. Perhaps it’s justified.
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### Author:  [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)
#### Post date: [June 28, 2022, 3:32pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/15 "2022-06-28T15:32:52Z")
> [@Whack-a-Mole](#):
>
> Don’t they usually ask a broad question like, “Is there any reason you feel like you would not be neutral?”
‘My career has been in data. Sometimes you run a program and don’t get the answer you expect; but data is data. I don’t think you could be more neutral than that.’ Notice I didn’t actually answer the question. 😉
> [@Procrustus](#):
>
> You’d have to violate the rules to do it.
I think the one thing we’ve learned recently is that rules are for suckers. 😛
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### Author:  [@Thing.Fish](https://boards.straightdope.com/u/Thing.Fish)
#### Post date: [June 28, 2022, 3:38pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/16 "2022-06-28T15:38:50Z")
I would lie my ass off in order to get on the jury and vote to acquit regardless of the facts or the law. Anything less would be contemptible moral cowardice.
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### Author:  [@kayaker](https://boards.straightdope.com/u/kayaker)
#### Post date: [June 28, 2022, 3:54pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/17 "2022-06-28T15:54:15Z")
> [@jjakucyk](#):
>
> In such cases I would expect potential jurors to be asked “do you know what jury nullification is and do you support or not support it?”
I’m assuming/hoping that when an abortion trial takes place, representatives of the [Fully Informed Jury Association](https://fija.org/) will be on hand, passing out leaflets on the street in front of the courthouse.
In which case, every potential juror may be answering “yes”, assuming they are literate.
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### Author:  [@Dandan](https://boards.straightdope.com/u/Dandan)
#### Post date: [June 28, 2022, 4:15pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/18 "2022-06-28T16:15:39Z")
> [@Smapti](#):
>
> if the prosecutor doesn’t ask me any questions that would compel me to answer that I’d be pro-nullification.
_emphasized text_
Yeah, that’ll happen. Prosecutors are going to be _vewy, vewy careful_ with jury selection when they select for these hot potatoes. My guess is that a lot of people will be willing to lie to protect their fellow human beings.
Dan
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### Author:  [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)
#### Post date: [June 29, 2022, 7:46pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/19 "2022-06-29T19:46:20Z")
Could states require something along the lines of a [death qualified jury](https://en.wikipedia.org/wiki/Death-qualified_jury?wprov=sfla1) in abortion cases?
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [June 29, 2022, 8:13pm UTC](https://boards.straightdope.com/t/anti-abortion-laws-and-jury-nullification/967001/20 "2022-06-29T20:13:09Z")
> [@Wrenching\_Spanners](#):
>
> Who is the defendant? Is it the person who performed the abortion, or the woman who had the abortion?
To my knowledge most state laws prohibiting abortion make an explicit exception against prosecuting the mother.
For example, [Al. Code 13A-6](http://alisondb.legislature.state.al.us/Alison/CodeOfAlabama/1975/147495.htm)-1 (d):
> (d) Nothing in Article 1 or Article 2 [ed. note: homicide and assault statutes] shall permit the prosecution of (1) […] (2) any woman with respect to her unborn child.
[Texas Penal Code sec. 19.06](https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm)
> CHAPTER 19. CRIMINAL HOMICIDE […]
>
> Sec. 19.06. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; […]
Fla. Statutes [775.021](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.021.html)(5)(d)(3) and [782.09](http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0782/Sections/0782.09.html) (emph. mine)
> 775.021 Rules of construction.—[…]
>
> (5) Whoever commits an act that violates a provision of this code or commits a criminal offense defined by another statute and thereby causes the death of, or bodily injury to, an unborn child commits a separate offense if the provision or statute does not otherwise specifically provide a separate offense for such death or injury to an unborn child. […] (d) This subsection does not permit the prosecution: […] Of a woman with respect to her unborn child.
> 782.09 Killing of unborn child by injury to mother.—
> (1) […] Any person, **other than the mother** , who unlawfully kills an unborn child by any injury to the mother: […]
~Max