What does Dobbs say?
The general consensus is that Dobbs gave States the right to regulate abortion again. However, this isn’t technically true. The final result of Dobbs was that there is no right to abortion protected by a right to privacy. If there is no right to privacy protecting the right to abortion, then States inferred they had regained regulatory authority.
One of the first questions I get regarding fetal personhood and citizenship is how it proves Dobbs wrong or invalidates it. It doesn’t. But that’s a feature, not a bug.
Fetal Citizenship
Regardless of your right to privacy, States are bound by particular bright lines when it comes to citizenship creation and the roles they can play in the process. The beauty of looking at abortion laws through the lens of citizenship law is the right to privacy is a moot point. It simply doesn’t matter. Dobbs can stand going forward without being overturned, and States can still be limited in regulating birth because of the explicit effects the process of birth has on Federal political status.
Dobbs can stand or fall and the argument from a citizenship perspective remains the same. In fact, there is no reliance on individual rights at all. The fetal citizenship arguments do not affirm a right to abortion. Only that States regulating birth are regulating citizenship ultra vires. A Supreme Court opinion can remove a protected right and still not authorize States to exercise a power the Constitution never gave them.
From the perspective of the Supreme Court, the question changes from “Is there a right to abortion?” into the much simpler question “Is this State law forcing a citizen to be created?”.
It’s still up to us to affirm the right to abortion through Congressional policy and lawmaking. Dobbs removes a judicially recognized right but does not transfer any new powers to the States.
The Right to Force Citizenship
I understand the resistance to a phrase such as “forcing a non-citizen to become a citizen” but it can be plainly demonstrated.
A non-official Chinese national is travelling in the US on business. She is pregnant and has every intention of leaving the US to give birth in China. China does not allow dual citizenship.
While at the airport, a bag loudly drops, scaring her, sending her into labor prematurely. She gives birth at the airport. All of a sudden (against the wishes of the mother, the Chinese government, possibly the father and even the child), the newly born child is, by law, a US citizen.
No paperwork is required. No Social Security Number is required and the State in which the birth happens has no say in whether or not this child is US citizen. If the State refused to file the paperwork, they would be breaking the law. In this scenario, against the wishes of every sovereign in the context, the Federal government has not only the right, but the obligation, to make that child a US citizen by jurisdiction.
After being born in the airport, in order for the child to receive the desired citizenship, that mother will need to rescind the child’s US citizenship through paperwork in the future.
This is what it means for the Federal government being able to force citizenship. An even simpler example is granting someone honorary citizenship. There’s no possible way a State would have say in honorary citizenship, which has happened exactly 8 times in US history.
Winston Churchill
Raoul Wallenberg
Mother Teresa
William Penn & Hannah Penn
Gilbert du Motier, Marquis de Lafayette
Casimir Pulaski
Bernardo de Galvez