Americans worried about the status of reproductive rights earned a breather last week when voters amended several state constitutions to protect access to abortion and turned away ballot proposals to criminalize the practice. In the wake of the U.S. Supreme Court's decision overturning federal protections for abortion access, those are incremental wins for pro-choicers. But the matter remains unresolved elsewhere. Among the tactics pro-choice advocates could adopt is one popular among champions of other controversial liberties: jury nullification.
In recent years, jury nullification, the judge-aggravating power of juries to bring "not guilty" verdicts even in defiance of the law, has been invoked in cases involving drugs, guns, political protest, and prosecutorial overreach. It was a common practice among jurors who disapproved of Prohibition. But it's best known for its antebellum use by abolitionist juries enraged by efforts under the Fugitive Slave Act to recapture people escaping bondage and fleeing to hoped-for freedom in northern states. That example is invoked by scholars who see the tactic as a promising shield for reproductive rights.
