People But Not Citizens
Rep Burlison of Missouri submitted House Bill (H.R.) 722 Life At Conception Act in January earlier this year. This bill would make any unborn human a legal person within the US. However, this bill will not change the text of the 14th Amendment’s citizenship clause. If you read the 14th Amendment, its text is clear.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens”.
It is factually and legally accurate to call every unborn person in the US an undocumented stateless non-citizen (United States v Wong Kim Ark, citizenship attaches at birth), regardless of H.R. 722 passing or not. There are no unborn Americans.
How can this affect the interpretation of murder versus abortion when it comes to State power?
The Question of Jurisdictions, not Rights
It’s difficult to separate murder of a fetus by a 3rd party and the mother via abortion if you only focus on rights. Given H.R. 722, someone shooting and killing a pregnant woman would be at risk of two counts of homicide. I actually believe most people in America would be OK with a law such as this, as long as the law did not imply the mother choosing abortion was considered murder.
If instead you approach this problem through the lens of citizenship, then the State’s power diminishes, but is not extinguished. Throwing a murderer in jail for two counts of murder when a pregnant woman is shot and killed has no bearing on forcing a citizen to be created. However, a State forcing a woman to give birth by criminalizing abortion is by definition converting a non-citizen person into an American citizen, a purely Federal function.
Anyone who has taken a civics class in the US knows that the Federal government has sole monopoly power on regulating citizenship, how people become citizens, and who becomes citizens. There are zero State powers delegated in the Constitution that allow States to regulate citizenship or its processes. States have no authority to create, deny, regulate, or confer U.S. citizenship (even after Dobbs).
The lens of citizenship jurisdiction allows for structural nuance in how rights get protected through gestation and birth. It allows States to protect the lives and well being of the unborn while simultaneously realizing the jurisdiction the Federal government has in the process of birth and citizenship creation.