The Pregnant Immigrants Fighting Trump’s Bid to End Birthright Citizenship

Monica is due to give birth in July. Identified in court records by a pseudonym, Monica is a prime target for President Donald Trump’s looming deportation campaign. As she waits for an asylum interview, Monica lives in South Carolina under Temporary Protected Status, which Trump tried to eviscerate in his first term and threatened on the campaign trail last year.

Despite the risks, Monica is suing to stop Trump’s attempt to use an executive order to unilaterally eliminate birthright citizenship: a bedrock constitutional concept. She’s joined by five other women — some undocumented, others with pending asylum claims — according to court filings in two federal court cases. The women, all between two and seven months pregnant, came to the U.S. from Mexico, Guatemala, Venezuela, Colombia, and Russia. 

Monica spoke Wednesday about her decision to join the lawsuit despite the risks of being targeted by the Trump administration.

“Our children should belong in the country where they were born,” Monica said through a translator at a press conference. “In this country.”

A broad coalition of states, civil rights groups, and immigrant advocacy organizations have filed challenges to Trump’s executive order, in a total of five federal lawsuits so far that are likely to reach the U.S. Supreme Court quickly.

But none face anywhere near the exposure of these six women, not to mention the personal stakes: If courts allow the executive order to stand, their children will be born not as U.S. citizens, which has been a constitutional given under the 14th Amendment for more than a century. Instead, they will be born as targets for immigration raids, potential deportees to a country they’ve never seen.

At their broadest, the lawsuits are about even more than who gets a Social Security number, crucial as that is. This is a much more fundamental test: Will courts let the president change the established meaning of the Constitution with a few Sharpie scribbles?

“By sidestepping the constitutional amendment process, this executive order attempts to unilaterally rewrite the 14th Amendment,” said Karla McKanders, director of the Legal Defense Fund’s Thurgood Marshall Institute, in a statement announcing one of the lawsuits on Monday night.

On Monday, Trump signed an executive order purporting to curtail the “privilege of United States citizenship” under the 14th Amendment.

Ratified after the Civil War as a rejection of the Supreme Court’s decision in the Dred Scott case, the 14th Amendment grants citizenship to any person “born or naturalized in the United States, and subject to the jurisdiction thereof.”

“When we ratified the 14th Amendment, we rejected the idea that some people born here are less than others in the eyes of the law,” writes Thomas Wolf, a lawyer for the Brennan Center for Justice. “There is no other way to understand those words.”

Given the 14th Amendment’s broad language and its interpretation by the Supreme Court as far back as 1898, pre-MAGA immigration hawks rightly presumed that getting rid of birthright citizenship would require amending the Constitution, such as the amendment floated by Sen. Lindsey Graham, R-S.C., in 2010.

After Trump targeted birthright citizenship during his first campaign, many avowed originalist legal scholars went on record about the plain meaning of the 14th Amendment.

“Anyone born in America under the American flag is a citizen, even if his parents are not citizens and indeed even if his parents are not here legally,” wrote law professor Steven Calabresi, one of the founders of the Federalist Society, in 2018.

But Trump’s executive order attempts to limit citizenship by injecting new meaning into who is “subject to the jurisdiction” of the United States when they are born, as fringe legal theorists began arguing in recent years.

The order claims, contrary to more than a century of practice, that a baby born in the U.S. is not a citizen if their mother “was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident” at their birth. Similarly, the baby is not a citizen if their mother was in the U.S. on a “lawful but temporary” basis — for example, on a student, work, or tourist visa — and the father was not a U.S. citizen or permanent resident.

“We are confident courts will see the order as the overreach that it is,” said Rupa Bhattacharyya, legal director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, who is representing the pregnant women along with two immigrants’ rights organizations.

“Birthright citizenship is fundamentally baked into the fabric of this nation and its laws,” Bhattacharyya said. “This is not the sort of thing that can be done overnight by an executive order.”

A hearing is scheduled for Thursday in Monica’s challenge to the executive order, as well as in a lawsuit filed by Democratic state attorneys general from Washington, Arizona, Illinois, and Oregon.

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