This summer, the Supreme Court is expected to reaffirm birthright citizenship (jus soli) in the United States. The case argued renews debate over what it means to be an American citizen. This decision will also be interesting in the context of current fetal and embryonic personhood debates, although it may not be obvious as to why.
At first glance, fetal personhood appears unrelated to birthright citizenship. However, if you begin to dig into some of the arguments of fetal personhood proponents, they appear to collapse legal personhood and citizenship into the same category. They assume that making the unborn legal people will automatically make them Americans.
This creates tension with the plain-text reading of the 14th Amendment. Birthright citizenship carries an unavoidable implication: there are no unborn Americans.
Citizenship at Birth
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.
If citizenship begins at birth, then States asserting authority over the creation of future citizens raises Federalism questions. The Federal Government alone determines who becomes an American citizen. If birth is the Constitutional moment at which citizenship attaches, States may possess less authority over that transition than current doctrine assumes. If there are no unborn Americans, a difficult Constitutional question follows. What authority do States possess over the transition into citizenship (through intent or effect)?
Most debates over fetal personhood center on moral and ethical arguments. A citizenship lens raises a different question. What limits exist on State authority over the act of birth after Dobbs? We will focus on two cases; Adriana Smith from Georgia and Salia Issa in Texas. Despite their differences, both cases illuminate similar citizenship questions.
The case of Adriana Smith presents the most rhetorically and legally salient example of States assuming power over birth. In Georgia, Smith was declared brain dead but kept alive for months against the wishes of her family in order for her unborn fetus to be removed via C-Section. Rhetorically, you can argue that the State of Georgia protected the rights of an undocumented non-citizen over the rights of the US-citizen mother. This may have some legal bite under a framework of equal protection, but you can just as easily argue the State of Georgia compelled the transition of a non-citizen into a citizen through the process of birth in an area traditionally governed by Federal authority.
Salia Issa’s case is almost the inverse of Adriana Smith, but still pinpoints similar friction between the unborn and the 14th Amendment. While working her shift as a guard at a Texas prison, Issa miscarried after asking to be relieved of her duty but being denied. Issa has since sued the State of Texas. In court filings, Texas argued that the unborn are not citizens under the 14th Amendment and treated that distinction as legally significant in evaluating Constitutional protections. Even the State of Texas’ filings reflect the premise that the unborn are not citizens under the 14th Amendment.
Citizenship and Federalism
The lens of citizenship does not affirm the right of bodily autonomy. The lens of citizenship also doesn’t limit which rights citizens and non-citizens have (unless you are the State of Texas apparently). Dobbs returned many questions surrounding pregnancy and birth to the States, but it did not rewrite the Constitution’s allocation of authority over citizenship processes.
States clearly possess authority over many of the circumstances surrounding birth, just as they regulate marriage despite marriage carrying significant Federal legal consequences. However, those laws regulate the conditions under which the event occurs rather than compelling the status-changing event itself. States may establish requirements for marriage, but they do not force two people to marry. By analogy, States may regulate aspects of pregnancy and birth while raising separate Constitutional questions when laws compel the transition that results in the creation of a new citizen.
If States cannot compel marriage (a status they largely control themselves), then why should they be able to compel the event that creates a status the Constitution places under Federal authority? The citizenship lens introduces a simple test for the Supreme Court to determine overreach in the context of State laws regulating birth.
Does this law, through intent or practical effect, compel or regulate the transition of a non-citizen into an American citizen?
Under birthright citizenship doctrine, that transition occurs at birth. Not before and not after.