Abortion, Citizenship, and the Constitution: Why State Abortion Bans May Violate Federal Authority

Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), states have regained the authority to regulate or ban abortion. But a novel constitutional argument suggests that in doing so, states may be intruding into a domain reserved exclusively to the federal government: the creation of U.S. citizens.

This post outlines a constitutional theory that reframes state-enforced birth as a form of compelled citizenship creation, raising serious questions about federal supremacy, naturalization, and the limits of state power under the U.S. Constitution.

The Core Argument

1. The 14th Amendment: Citizenship Begins at Birth

The 14th Amendment clearly states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Key takeaway: Citizenship begins at birth, not before. A fetus—no matter its legal or moral status—is not a citizen. Citizenship is conferred only at the moment of birth.

2. Pre-Birth Status: A Stateless, Non-Citizen Entity

If we hypothetically treat a fetus as a legal person (as many abortion bans attempt to do), then that fetus would be:

  • A person under state law,
  • But a non-citizen under federal law,
  • With no legal nationality or documentation.

In legal terms, the fetus is a stateless individual until the moment of birth, when it transitions—by operation of federal law—into a U.S. citizen.

3. Birth as a Federally Regulated Status Change

The act of birth is not merely a biological event; it is a constitutional threshold that transforms a non-citizen into a citizen. It’s a legal moment that:

  • Confers political membership,
  • Triggers federal protections,
  • And activates a host of rights under the U.S. Constitution.

This transformation is governed exclusively by federal law, under the 14th Amendment.

4. Congress’s Exclusive Power Over Naturalization

Under Article I, Section 8, Clause 4 of the Constitution:

“Congress shall have Power… To establish a uniform Rule of Naturalization.”

This clause has long been understood to mean that states have no authority to regulate citizenship or the process of becoming a citizen. That power belongs solely to the federal government.

Although naturalization usually refers to the process for immigrants, the underlying principle applies: Only the federal government can control how someone becomes a U.S. citizen.

5. The Problem: State Abortion Bans as Compelled Citizenship Creation

If a state bans abortion and forces someone to give birth, it is effectively:

  • Forcing the creation of a new U.S. citizen,
  • Through the body of an existing citizen,
  • In violation of the constitutional rule that only the federal government may control the process of citizenship.

This isn’t just a moral issue or a privacy issue—it’s a federalism issue. It suggests that states are exceeding their constitutional authority by compelling political status changes.

What would Alito say?

Response: Birth has profound legal consequences—it is the trigger for U.S. citizenship. States are not merely regulating biology; they are coercing a transformation with constitutional implications.

“States have police powers to regulate health and safety.”

Response: Police powers cannot override federal supremacy in matters of citizenship and naturalization. Just as states cannot issue green cards or passports, they cannot compel the creation of a new citizen.

“This isn’t naturalization—it’s birthright citizenship.”

Response: While birthright citizenship is not the same as naturalization, the principle is the same: the transition into U.S. citizenship is federally controlled. States cannot interfere with that transition, whether it’s through paperwork or childbirth.

Broader Implications

This theory reframes abortion bans as more than just a challenge to reproductive rights. It raises constitutional alarms about:

  • State overreach into federal power,
  • The status of the fetus as a non-citizen person,
  • And the unexamined implications of forced birth in the context of citizenship law.

It opens a new avenue for legal challenge: one based not on privacy or equality, but on federal exclusivity over political membership.

Whether or not courts have yet recognized it, forcing birth is not politically neutral. It compels the federal creation of a citizen—a power no state possesses.

In that light, state abortion bans may not simply be unjust. They may be unconstitutional, as violations of the federal government’s exclusive authority over who becomes a citizen of the United States.

This argument has not yet been tested in court, but it represents a novel and serious constitutional claim—one that deserves deeper consideration in the post-Dobbs legal landscape.