By Ben Johnson

After four years of legal victimization by the Biden-Harris administration, pro-life advocates breathed a sigh of relief when President Donald Trump took office. The president promptly set about reversing the Left’s weaponization of government, ordering the Justice Department to drop prosecutions of peaceful sidewalk counselors and pardoning nearly two dozen Christians targeted by a Democratic Party that relies heavily on donations from the abortion industry. But now, constitutional attorneys have listed four additional ways the Trump administration — which has delivered a palpable conservative agenda through executive orders — could rectify the federal government’s targeting of the pro-life movement without having to consult with another branch of government.

After the Supreme Court clarified the Constitution has no right to abortion, the Biden administration attempted to aid the abortion industry by harshly prosecuting nonviolent pro-life protesters. In addition to charging Christians with violating the 1994 Federal Access to Clinic Entrances (FACE) Act, Biden’s DOJ elevated the penalty by slapping them with felony charges under the “Conspiracy Against Rights” provision of the Ku Klux Klan Act of 1871.

President Trump could further repudiate Biden-era persecution by having Justice Department officials “properly define the scope” of both federal laws (18 USC §248 and 18 USC §241), said a constitutional attorney who defended many of the Biden administration’s victims.

As things stand, “a Sword of Damocles hangs over pro-life advocates. Because of the long statutes of limitation on the relevant federal laws, pro-life Americans remain in fear that some future administration will twist the law and come after them,” Peter Breen, executive vice president of the Thomas More Society, told Congress. After all, “many of the Biden prosecutions were for actions that occurred during the first Trump administration.”

“These immediate actions will provide pro-life Americans with the comfort to know that their federal government will not target them unfairly and will evenhandedly apply the law,” he added.

“[W]e urge Congress to repeal the FACE Act, which is selectively and illegally enforced by pro-abortion presidential administrations,” Breen testified at a House Judiciary Committee hearing on the weaponization of the Biden Justice Department on Tuesday. Rep. Chip Roy (R-Texas) has reintroduced legislation to repeal the controversial and archaic Clinton-era statute (H.R. 5577). “But in the immediate term, Congress has several other concrete steps it can take, working with the new administration to define the proper scope of the laws and to defend the rights of pro-life Americans,” said Breen, a former assistant Republican leader in the Illinois House of Representatives.

The four policies the Trump administration can take to protect pro-life advocates from legal harassment include:

1. Clarify that the FACE Act applies only to blocking the way of abortion-minded women and abortion office staff, not volunteer “abortion escorts.” The Senate sponsor of the1994 bill, the late Senator Ted Kennedy (D-Mass.), agreed to an amendment with former Senator David Durenberger (R-Minn.) that clarified, in Durenberger’s words, “The bill, as currently drafted before us, allows legal relief only to clinic patients and personnel. … We have recognized that federal law should be extended narrowly to protect only those who were actually attempting to obtain or provide medical or counseling services. It does not protect the escorts.”

This case of Mark Houck — a Catholic father of seven arrested by federal agents at gunpoint — turned on precisely this distinction. The Biden-Harris administration prosecuted Houck over an alleged altercation with an escort. “Had we not won for Mark — and won so definitively and publicly — there presumably would have been a wave of Houck-style prosecutions, federalizing minor sidewalk squabbles, across the country,” Breen told Congress. 

2. Codify that the FACE Act’s “physical obstruction” clause “does not apply to peaceable counseling activity that does not intentionally obstruct” a mother or abortionist, e.g., those who pray, sing, or counsel near an abortion facility without deliberately blocking its entrance. “The Biden DOJ advanced a contrary theory, as did the Obama DOJ before it,” noted Breen, “And the New York attorney general, with the blessing of the Biden DOJ, pressed and continues to press that contrary theory today.”

3. The Trump administration should make clear that the FACE Act “cannot be applied to others who do not actually block” entrances “without running afoul of the First Amendment.” The courts “have recognized that pro-life sit-ins are First Amendment activity, and while those who actually block can be prosecuted under the act, those who provide moral and spiritual support should not be prosecuted, consistent with the First Amendment,” said Breen.

4. Finally, the Trump administration should make it official policy that the Ku Klux Klan Act’s “Conspiracy Against Rights” statute “and its 10-year felony provisions cannot be applied to pro-life advocates at all,” Breen told Congress. “There is no federal right to abortion, and clinic access is not the sort of right intended to be protected by this statute from the 1800’s, which was intended to protect the voting rights of black Americans against the KKK. The DOJ’s use of this statute was a critical injustice in the recent prosecutions of peaceable pro-lifers, allowing them to be branded as convicted felons and subjecting them to years in a federal penitentiary.”

Again, this would restore the original meaning of both statutes. During debate over the 1994 act, Senator Kennedy reassured voters that, “if an individual does violate this law for the first time, it is not a felony.” The Thomas More Society represented one of the pro-life advocates charged under the conspiracy statute: Paul Vaughn.

“These immediate actions will provide pro-life Americans with the comfort to know that their federal government will not target them unfairly and will evenhandedly apply the law,” said Breen.

He likely has a receptive audience, both with President Trump and Vice President J.D. Vance, as well as its like-minded legal appointees. As one of his first actions in office, Trump pardoned 23 pro-life advocates prosecuted by the Biden-Harris administration — fulfilling a campaign pledge first announced at the 2023 Pray Vote Stand Summit, organized by Family Research Council Action.

“Those pardons sent a powerful message to the country — and especially to the millions of Americans in the pro-life movement — that they need not fear the federal government under President Trump,” Breen told Congress.

“I will govern by a simple motto: Promises made, promises kept,” said President-elect Trump after decisively winning last November’s election.

Aside from these actions, Breen urged federal officials at all levels of government to “continue to investigate and expose the misuse of the FBI and DOJ over the past four years against pro-life Americans.”

“Sunlight is the best disinfectant,” he said.

Ben Johnson is senior reporter and editor at The Washington Stand.