The court room was packed. The case was historic; deciding if Jefferson’s state-run birthing centers humming with artificial wombs were unconstitutional breaches of the 14th Amendment’s apportionment clause.
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State”
Jefferson had leapt head-first into the tech behind artificial wombs as soon as it was viable. It was a gambit to overtake the State of Madison’s population in order to gain more seats in the House of Representatives. The State of Madison was currently suing the State of Jefferson and the case had finally made its way to the Supreme Court. Months of appeals in lower courts had prolonged the case, now in its 2nd year.
The “farms” had been running for just over three decades, quietly depositing children into orphanages across the state and recently were outed by a whistleblower. The past two Federal census counts had shown Jefferson exploding in growth. Within one more decade, the population of Jefferson would overtake the State of Madison.
The State of Madison’s lawyers opened with their own remarks.
“Good day, your Honors. Under what circumstances should a State have a say in how it is Federally represented? Every State would love to increase its count in the House of Representatives.”
Papers were still rustling from the bench as the Justices settled in. A few coughs echoed.
“You could ask the question in another way. What jurisdiction does a State have to coerce a non-citizen person to become a citizen? I think we would all agree that States have no authority to issue passports nor grant citizenship to non-citizens.
“The State of Madison’s argument is that any laws or regulations by Jefferson forcing the gestation of non-citizens in order to give birth to new citizens is bypassing Congress’ direct control over citizenship as per Article 1.”
Esquire took a quick sip of water as the nerves dried his mouth.
“Secondarily, although much more importantly, we argue this effectively breaks and undermines the representative model of government at its most basic foundations, per the 14th Amendment.”
Previous arguments in the lower courts had been frozen in battles of morals and ethics. One judge in one State overturned another, an endless cycle of weak precedents; a moral dilemma masquerading as law. All the while, a hundred thousand children were still growing in artificial wombs in Jefferson fertility clinics. Over the past thirty years, Jefferson had churned out children whose father was the State and mother was an ephemeral school teacher or social worker. At the Supreme Court, Drew Esquire wasn’t holding back any punches.
The Jefferson lawyers gave their rebuttal.
“Your Honors, the Constitution is silent on how a State may encourage birth. It is not silent on who counts for apportionment. The 14th Amendment states plainly: ‘counting the whole number of persons in each State.’ It does not qualify how those persons must come into being, nor does it restrict the States from fostering the conditions for life.
“The State of Jefferson has not issued passports, nor has it naturalized foreign nationals. We have simply facilitated the gestation of children within our borders. Every baby born in Jefferson is born on American soil and, under the 14th Amendment, is a citizen of the United States. That is federal law.
“If the plaintiffs are correct, then every State that funds adoption services, maternal health clinics, or subsidized child-care is guilty of the same offense; encouraging non-citizens to become citizens. But no court has ever held that legislating for the welfare of future citizens is unconstitutional. Jefferson has merely extended this principle with modern technology.
“Finally, Madison warns of a ‘breach of representation.’ But representation is not capped; it grows with the people. Our framers did not fear populous States, they feared undercounted ones. To punish Jefferson for its innovation would be to punish children for the circumstances of their birth, and to deny the very text of the Constitution: that all persons born are to be counted.”
Justice Holy Toledo was the first to initiate questions from the bench, after a wink and nod of approval from Chief Justice John Lemon.
“Mr Esquire, states have full police power to regulate health, including unborn Americans. I’m shocked you would bring anything regarding Article 1 into the conversation.”
“There are no unborn Americans, your Honor.”, Esquire responded.
Justice Toledo scoffed.
“That’s an absurd statement. How can you possibly back that up?”
After sipping water and clearing his throat, Esquire began.
“The 14th Amendment says in plain and simple English ‘All persons born or naturalized, and subject to the jurisdiction thereof, are citizens’. Until you are born, you are a stateless undocumented non-citizen. There are no unborn Americans.”
“Are you saying a fetus is a foreign national?” Esquire was feeling more confident now, probably the adrenaline kicking in. It was time for full-contact sport.
“No, I’m saying it’s not even that. A fetus is stateless, which begs the question ‘If states don’t have authority to coerce citizenship for foreign nationals through paperwork, why would they have authority to coerce citizenship through another mechanism?’”
Justice Toledo sighed and put his thumb and forefinger between his eyes, squeezing his eyes closed into a painful wince.
“I don’t understand the point you are trying to make.” He sounded exasperated already.
“Could you please elaborate on what this has to do with artificial wombs?”
Mr Esquire continued.
“Until born, per the 14th Amendment, every fetus in those artificial wombs is a stateless undocumented non-citizen. Birth is the process by which these unborn non-citizens become Americans, and this moment is a Federally-regulated political status switch per the 14th Ame-.”
“What is your point Mr Esquire?” Toledo interjected.
“Any state laws that attempt to regulate this Federal status switch at birth, either through intent or effect, are jurisdictional overreach.”
Justice Toledo began to look annoyed, clearly not seeing or agreeing with the congruence.
“As the defense clearly says, states have always encouraged birth through several means.”
“Encouragement is not coercion, your Honor. States absolutely have the power to encourage birth. That line stops at coercion, especially when it comes to Federal citizenship status changes.”
The Jefferson defense chimed in.
“These unborn are being born, and are therefore citizens, period. That’s what the Constitution says. We are not forcing any status changes. Just because they aren’t documented with a Social Security number until birth doesn’t mean they aren’t a citizen.”
Madison’s lawyers rebutted. This wasn’t Esquire rebutting, but another state lawyer in her early forties; about ten years older than Esquire.
“Nobody in this room would agree that any fetus anywhere on Earth, artificial womb or not, has been born. This is especially true if you consider the debates about the 14th Amendment which we have direct records of.
“If the States are allowed to redefine what born means, they can directly attack the representative democracy we have today. Federally, ‘born’ has been a regulated point in time post-gestation for the entire history of the country.”
Justice Samuel Jackson entered into the conversation from here, part of the liberal minority.
“Birth is the process that creates a new legal individual. Individual literally means unable to divide further. A pregnant woman is a single individual as you cannot divide her from the fetus without death or significant harm and violation of rights to one or both until term.”
Esquire jumped on the opportunity to reinforce this line.
“Correct, your honor. Whether a pregnant woman or artificial womb, the fetus is inseparable from the host until birth where the fetus becomes a new person, individual, and is conferred citizenship.”
He had the full attention of the bench and the defense.
“Before artificial wombs, birth meant passage through a vaginal canal. In the context of artificial wombs, these children are not born until they are separated from their host post-gestation in the same manner.
“Until that separation, they are not born and are not citizens per the 14th Amendment.”
A low murmur had built on the Jefferson side, along with the court reporters and the other Justices on the bench. The moral arguments Jefferson had come with had no leverage against the jurisdiction-based arguments brought by Madison’s side. It didn’t matter if the fetus was a person or not. It didn’t matter if the artificial womb was moral and the ethics of population engineering were moot.
After hours of back and forth questions, the conservative court with a 6-3 majority had no choice but to agree with the black and white reading of the Constitution. The originalist, textual argument required no interpretations and used every precedent from the conservative majority on Federal vs State jurisdiction. Jefferson lost 7-2.
With Jefferson stripped of authority, and Congress yet to act, one hundred thousand fetuses floated on; stateless, parentless. Were they to be sustained at Federal expense, or ended in silence by the self-proclaimed “pro-life” state? The Court did not say.
Drew Esquire was just glad to have gotten out of the gross experiment alive 30 years ago and prevented it from happening again.