With the end of Roe v. Wade and abortion restrictions beginning to take effect around the country, it looks like juries could soon begin hearing cases brought under the new laws. Might juries start opting for the uncommon but historically important procedure of nullification?

Jury nullification, today, is an obscure legal phenomenon that lawyers and judges take special efforts to avoid via circumlocution. Thus, the term — which most people have never heard of — deserves defining.

“A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself,” is the way it’s defined by Cornell Law School.

Cornell adds that a jury might feel compelled to choose nullification if “the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.”

Nullification rests on the issue of double jeopardy. If a case is decided and the jury acquits the accused the case cannot be retried, no matter how damning the evidence.

Although Cornell Law notes that nullification “is not a legally sanctioned function of the jury” this does not mean that there is no precedent for jury nullification in American history.

One of the most prominent cases in colonial America, the trial of Peter Zenger for seditious libel, ended in an instance of jury nullification.

Zenger stood accused of libel after publishing truthful information about Governor Cosby of New York. At the time, Middle Tennessee University political scientist John Vile writes, “truth was no defense to an accusation of seditious libel.”

Zenger confessed to printing the libelous material. The jury acquitted him anyhow. They knew that Governor Cosby was a crook, same as Zenger did. 

Later, America witnessed spikes in instances of jury nullification “when the government has tried to enforce morally repugnant or unpopular laws,” according to University of Missouri-Kansas City School of Law professor Douglas Linder.

He identifies the Alien and Sedition Acts, the Fugitive Slave Law, and the 18th Amendment all as broadly unpopular laws that, in their time, frequently inspired juries to nullify.

Today, abortion restrictions are being implemented across the country. “Without Roe, 26 states are certain or likely to ban abortion to the fullest extent possible, including 13 states that have ‘trigger’ laws in place that will automatically enact bans,” says the Guttmacher Institute’s president and chief executive, Dr. Herminia Palacio.

For context, the Pew Research Center finds that 61 percent of Americans believe that abortion should be legal in all or most cases with only 10 percent supporting a ban with no or few exceptions.

Beyond just aborition, the concurring opinion in Dobbs v. Jackson Women’s Health by Justice Clarence Thomas suggested that the court may be interested in re-examining other decisions based on a right to privacy opening the doors to bans on contraceptives, gay marriage, and “sodomy.”

The New York County Lawyers Association president, Richard Swanson, argues that though major privacy cases are, in his opinion, likely to be reexamined but unlikely to be overturned. Still, some are more at risk than others.

“The odds for gay marriage being overturned are the highest of the privacy cases, and the odds for interracial marriage are at the lowest of being overturned,” he said. In between are cases involving birth control and consenting same-sex intimacy, he said.

Legal analyst Jennifer Rodgers tells the Sun that though nullification is “frowned upon,” it could happen in instances of protest.

“This will  be the first time in a very long time that we have a set of laws that are very well known that are broadly unpopular with the people,” she said. “You could definitely see it happening.”

She warns that it is unlikely to be as broad as during Prohibition but that juries could use it as “a move against the system” and in order to show their disapproval.

“If jurors start to speak out saying ‘I think this is a horrible law’ and that becomes a trend, then that sends a message,” she said. “The problem with juries, unless they talk, is that it is a black box.”

Mr. Swanson doubts that jury nullification will become a common outcome of abortion cases but forsees situations in which a jury might decide to nullify out of protest.

He points to large blue cities within red states as possible venues for jury protests to emerge. “The possibility of a jury to nullify exists here without a doubt but overall it’s not a statistically common event,” he said. “The more extreme the state law that’s enacted the more likely a jury nullification case becomes.”