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Last month, the Department of Justice reportedly directed federal prosecutors to prioritize investigations into so-called birth tourism. Coming only hours after the Supreme Court’s ruling on birthright citizenship, the move sent a clear message: This administration is not taking “no” for an answer.
As a longtime immigration attorney—formerly with the Department of Homeland Security—and the child of immigrant parents, I see frightening historical parallels in this moment. With birthright citizenship, Republicans and anti-immigration activists are once again playing the long game, shifting public perception and laws in the process. Just as they did with their 50-year crusade to overturn Roe v. Wade and restrict abortion, this administration will continue to narrow, challenge, and politically reframe the rights of immigrants and their American-born children. was just the beginning.
When Roe was decided in 1973, SCOTUS issued a 7–2 decision that protected a person’s right to an abortion based on the fundamental “right to privacy” granted by the due process clause of the 14th Amendment of the Constitution. Anti-abortion strategists quickly set out to undo the decision, first by attacking privacy rights, then by instituting state-level bans, and eventually by remaking the Supreme Court after Trump’s 2016 election. The was the capstone on a decadeslong crusade.
There are chilling parallels to what’s happening now with birthright citizenship, another issue tied squarely to the 14th Amendment. When the 14th Amendment was ratified in 1868, it was meant to answer a fundamental question in this country: Who gets to belong? Thirty years later, in United States v. Wong Kim Ark, the Supreme Court confirmed that a child born in the United States, and subject to its jurisdiction, is a citizen of the United States. Back then, the margin was a 6–2 decision, with one justice not participating. And now, with Trump v. Barbara more than 150 years later, we are still arguing about the same thing. This time, the margin was even slimmer. Although six justices agreed with the outcome that the executive order was unlawful, only five agreed that the Constitution and the 14th Amendment say what they say— that all persons born in the United States are citizens—and that is terrifying.
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Enter the “birth tourism” debate. In Trump v. Barbara oral arguments, Solicitor General D. John Sauer said that “thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades,” though he was unclear about his sourcing.
Justices Clarence Thomas and Sam Alito took this cue and referenced “birth tourists” in their respective birthright citizenship dissents. But some estimates put the number of “birth tourists,” or pregnant women who expressly enter the United States on a tourist visa with the intention of giving birth and then leaving, at under 2,000 per year. So why the outcry for such a rare occurrence? When viewed from a Roe-inspired, long-view lens, the strategy looks all too familiar. Chip away at public perception first, and changing laws will follow. For his part, Justice Brett Kavanaugh drew Congress a road map on how to get at least Supreme Court four votes in favor of curtailing birthright citizenship
To be sure, not all Supreme Court rulings become decadeslong conservative cudgels. But given our highly polarized moment, it would be prudent to be mindful of history. Some claim that abortion-rights advocates dropped the ball, taking for granted that the 1973 Roe decision would remain settled law while anti-abortion activists were quietly organizing and gaining power. We must not make the same mistake with birthright citizenship.
While the 14th Amendment and birthright citizenship are protected for now, the dissent’s “allegiance” test and the immediate focus on “birth tourism” show us that the fight is far from over. We must prepare for the long haul.
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