By Chuck Donovan

Once upon a recent time in America, Dr. Martin Luther King Jr.‘s “Letter from a Birmingham Jail” was more or less required reading. The argument sustained by Dr. King after he was imprisoned for participating in a protest march in 1963 is one of the defining documents of U.S. and world history. In the statement, King passionately responds to “A Call for Unity,” an open letter from eight white clergymen who empathized with the civil rights movement’s opposition to segregation but urged against campaigns of nonviolent direct action. King’s response, written by hand in the margins of a newspaper and on blank sheets of paper, is a prose masterpiece worthy of multiple readings.

More than that, the letter remains relevant to one of the most vital debates of our time, the right to life.

In the flurry of actions by the new administration came one on January 23 that touches upon acts of civil disobedience and the public and legal reaction to them. President Trump’s executive order freed 23 pro-life demonstrators in federal prisons who had been convicted under the Freedom of Access to Clinic Entrances, or FACE, Act. A lead attorney for the Thomas More Society, Steve Crampton, which has stalwartly defended the demonstrators, celebrated the news, saying, “The heroic peaceful pro-lifers unjustly imprisoned by Biden’s Justice Department will now be freed and able to return home to their families, eat a family meal, and enjoy the freedom that should have never been taken from them in the first place.”

The pardons are indeed cause for celebration. The Biden administration prosecuted pro-life protestors with unusual zeal and some received terms stretching multiple years under reportedly harsh conditions. Their actions in opposition to abortion were carried out peacefully, in contrast with the wave of violent acts against pregnancy help centers that occurred in the wake of the 2022 Dobbs ruling reversing Roe v. Wade. Charges against the more than 200 protestors at the first Trump Inaugural who smashed windows and burned vehicles in Washington, D.C. were dropped en masse. Pregnancy center bombings have gone all but uninvestigated and unpunished.

The case that bias has been at work is strong, and it’s imperative that the pro-life pardon story and the bias surrounding it not disappear. The Justice Department should conduct and release an analysis of whether radically disparate federal resources were deployed in these cases because of the views of those involved.

But there is even more to the story about what should happen next. As questionable as were the convictions and confinement of these protestors, many of whom were elderly and hardly a threat to civil order, a real federal statute was involved that has, so far at least, survived constitutional challenge. Left in place, the nation will likely see the underlying issues raised in this drama go unaddressed. The next administration more favorable to abortion, and there will no doubt be one, can resume enforcement of the FACE Act, restarting the cycle of prosecution and jailing. This type of cycle was the aim neither of Dr. King nor of Joan Bell and the other pro-life men and women who risked so much to champion the innocence of the unborn.

Is the FACE Act Unjust?

Is the FACE Act the unjust law in question in these matters? The statute was adopted in 1994, the second year of the Clinton administration. The Department of Justice website, online as of this writing, sets forth the statute and asserts it is not about abortion. It reads, “The federal government may bring criminal charges under the Freedom of Access to Clinic Entrances Act ("FACE” ) (which prohibits threats of force, obstruction and property damage intended to interfere with reproductive health care services), or other federal criminal statutes where arson, firearms, and threats were also used. The FACE Act is not about abortions. The statute protects all patients, providers, and facilities that provide reproductive health services, including pro-life pregnancy counseling services and any other pregnancy support facility providing reproductive health care.“

The addition of pregnancy centers to the law made sense when it was clear this statute would pass in the wake of a turbulent period of demonstrations around abortion facilities. The peaceful nature of pro-life protestors involved in the current cases matters supremely. This is a creedal commitment of right to life activists who have read and prayed over the grave undertaking of civil disobedience and know that the moral status of their witness collapses if it is not conducted peacefully. As Dr. King wrote, the four stages that must occur when acts of nonviolent civil disobedience are contemplated include "collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.” These are weighty responsibilities on the part of an activist for any cause, and they are not simple tests to meet.

This is where the question gets more pointed. Is the FACE Act unjust and must it be repealed? If repealed, should that happen in its entirety and include “all” reproductive health centers, pregnancy centers, churches, and other bodies covered by its current terms? It is difficult to come up with a satisfying answer if the target of the law is actually to deter, identify, apprehend, and prosecute violent actors. In the case of the 23 pardons, the law did not operate that way. Lack of trust in the equitable enforcement of our laws — the non-weaponization of justice — may be the biggest problem bedeviling American political life now. Confidence in equal justice under law is virtually nonexistent, regardless of one’s position on the political spectrum.

Two days before the executive order conveying pardons, Rep. Chip Roy (R-Texas) introduced the FACE Act Repeal Act of 2025, a very short measure (H.R. 589), that administers a coup de grace to the law. It would immediately halt any prosecution under the Act pending or commenced on or after the date of enactment. Senator Mike Lee (R-Utah) plans to introduce the same measure in the U.S. Senate. As Lee says regarding the proposal, “In our quest to build a society where every precious human life is protected, we cannot allow the tax dollars of American families to be used against the most vulnerable people in our country and across the world: the unborn.”

Unresolved First Amendment Questions

The effect of the repeal would not be to end law enforcement activity around acts of civil disobedience but to leave those processes in the hands of state and local government. Prosecution and imprisonment of peaceful pro-life protestors could continue under these statutes, which exist in many jurisdictions with permissive abortion laws. A set of related statutes called buffer zone laws extend the area around abortion facilities in which an expanded array of behaviors are prohibited.

The federal FACE Act by its terms applies to acts by people at clinic entrances that engage in force or threats of force, intentionally injure someone, physically obstruct (as in a sit-in), or intimidates someone seeking to enter a facility. The buffer zone laws are typically much broader, proscribing protest activity, in a leading law, within 100 feet of a facility and potentially applying to an individual offering counseling services, pregnancy care, or just a listening ear to women and girls as they approach the facility.

The Supreme Court has upheld the legality of buffer zones as a general matter, but new litigation is underway that, with changes on the Supreme Court and sharper argument, could result in clarification of the scope of these unusual laws. On February 24, the high court rejected hearing an appeal in Coalition Life v. City of Carbondale, Illinois, with Justice Clarence Thomas writing in dissent that the case should have been accepted.

Thomas argued that the court’s decision to deny certiorari in the case was the fruit of its abortion distortion, the manner in which legal principles that would be accepted and applied in any other context are discarded when the subject matter is abortion. The court, deciding on a Colorado buffer zone law in 2020, had allowed for a ban on even sidewalk counseling near a facility on the grounds that the law was content neutral. The court alluded to an alleged right to be protected from “unwelcome speech.” Thomas’s dissent on Monday rued the court’s decision to refrain from addressing the manifest First Amendment issues attending buffer zone laws.

Abortion: The Ultimate Injustice

It may be cold comfort, but things in the United States are not quite so bad as they are in the United Kingdom and Scotland in particular, where the content not just of speech, but even of silent prayer in the vicinity of an abortion facility is prosecutable under the criminal law. Just last week, the BBC reports, a 74-year-old woman in Glasgow, who could be described as the least intimidating person in the world, was arrested for standing nearby an abortion facility, silently, holding a sign that read, “Coercion is a crime, here to talk, only if you want,” In England, meanwhile, a veteran’s silent prayer was only the latest violation to provoke an arrest, trial, and conviction.

The United Kingdon has no First Amendment, but it does have a tradition of popular rights tracing to Magna Carta. It has been America’s centuries-long companion in the advocacy and defense of freedom and the rule of law. In the United Kingdom, new “buffer zone” laws are so sweeping as to have drawn the attention of the new U.S. vice president in his first speech overseas. The laws are horrifically overbearing and contrary to liberty. But the roots of this weed of tyranny lie in the culture of abortion. Martin Luther King did not write from jail to champion protest, but to turn the public gaze and mind to the unjust law of segregation. How does one act in the face of manifest injustice? King answered:

“In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law. ”

For these reasons, while justice in the form of release of the imprisoned pro-lifers must be celebrated, their pardons and even repeal of the FACE Act leaves us far from the end of the road. They would only likely be the prelude to the next cycle of arrests. The unjust law at issue, at every level of government, is the one that allows abortion facilities to be deemed part of reproductive health care. Abortion centers are where care for mothers and babies goes to die. The womb, by divine design, is the true buffer zone of protection for every new life. It is the face of the innocent unborn child we must learn again to see.

Chuck Donovan served in the Reagan White House as a senior writer and as Deputy Director of Presidential Correspondence until early 1989. He was executive vice president of Family Research Council, a senior fellow at The Heritage Foundation, and founder/president of Charlotte Lozier Institute from 2011 to 2024. He has written and spoken extensively on issues in life and family policy.