Breitbart reported this weekend that five pro-life activists will remain in jail after the U.S. Court of Appeals for the District of Columbia Circuit turned down their motion for release.

The request was made by lawyers for Lauren Handy, Heather Idoni, William Goodman, Herb Geraghty, and John Hinshaw.

Prosecutors say praying demonstrators were part of an "invasion"

All five were found guilty late last month of violating the Freedom of Access to Clinic Entrances (FACE) Act for their action in October of 2020.

Assistant U.S. Attorney Sanjay Patel maintained that they orchestrated an "invasion" of the Washington Surgi-Clinic, which advertises late-term abortions through 27 weeks.

However, defense attorneys provided by the Thomas More Society said they did nothing of the sort and entered the building after having booked an appointment under the name "Hazel Jenkins."

"Some simply kneeled and prayed at Santangelo’s facility, some passed out pro-life literature and counseled abortion-minded women, and others roped and chained themselves together inside the facility," the defense was quoted as saying.

Judge argued that banning abortion is akin to slavery

Following their conviction, the defendants were ordered by Judge Colleen Kollar-Kotelly to taken into custody immediately and held behind bars while they await sentencing.

Breitbart noted that Kollar-Kotelly, who was appointed to the bench in 1997 by President Bill Clinton, has argued that abortion is protected by the 13th Amendment's prohibition on slavery.

Handy's lawyer filed an emergency motion for her client's release, arguing that the actions in question did not amount to a "crime of violence" and thus did not warrant pre-sentencing detention.

Kollar-Kotelly disagreed, however, as did the D.C. Court of Appeals, which is made up of  Circuit Judges Robert Wilkins, Justin Walker, and Gregory Katsas.

Katas, a Trump appointee, took the unusual step of issuing a separate concurring opinion in which he said Handy’s attorneys "failed to develop" their argument but did not express support for the prosecution's claim that they should be held in custody.

Trump-appointee doubts that "a crime of violence" was committed

"In deciding this motion, we have no occasion to consider whether the FACE Act's element of 'force' sweeps more broadly than the 'physical force' required for a crime of violence," Katas wrote.

"That possibility arises because the common-law definition of 'force' encompasses even the ‘slightest offensive touching,’ whereas the crime-of-violence definition of 'physical force' requires 'violent force' — that is, force capable of causing physical pain or injury to another person," he continued.

"So, if FACE Act 'force' tracks the broader common-law standard, then section 248(a)(1) is not a crime of violence," the judge went on to contend.

"My vote to deny interim relief rests on Handy’s failure to develop this argument, rather than on any assessment of whether it is likely to succeed," Katas concluded.