The Supreme Court heard oral arguments last week in the case of Trump v. Barbara, offering the first insight into how the Court will decide the legality of President Trump’s executive order attempting to end birthright citizenship for the children of undocumented immigrants and immigrants who are in the country legally but temporarily (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work or tourist visa). At issue are the citizenship clause of the 14th amendment to the Constitution (ratified in 1868) and provisions of the Immigration and Nationality Act (INA, enacted in 1940 and again in 1952). The language in the 14th amendment confers citizenship on anyone “born or naturalized in the United States, and subject to the jurisdiction thereof,” and the INA mirrors that language, conferring citizenship on, “a person born in the United States, and subject to the jurisdiction thereof.”
Supreme Court watchers have written up different analyses of the argument, including SCOTUSblog, The New York Times, and NPR. Supreme Court forecasting is not in our purview, but the case and the oral arguments raise some important questions about Medicaid eligibility as it relates to newborns that are worth exploring. Medicaid covers 41% of births in the U.S. so this is no small matter. Needless to say, it is hard to think of a more critical moment for children and their families to have health insurance and access to care.
Under current law, babies born to mothers whose labor and delivery are covered by Medicaid are automatically enrolled in Medicaid for one year. This group of babies is known as the “deemed newborns” category because the state does not have to conduct an eligibility determination for the baby. Instead, the state automatically enrolls the newborn based on information it already has about family income and state residency and the fact that the baby is born in the U.S. and therefore a citizen. The goal is to ensure that babies have coverage from the moment they are born through that first, critical year of life, without requiring unnecessary red tape for the parents to navigate during a hectic time when nurturing their newborns should be their primary focus.
What would happen if birthright citizenship ended as outlined in the executive order? First and foremost, many children, including many born to parents who are lawfully present, would lose access to health care. Even for the kids who remain eligible, there will be problems proving their eligibility. States would still have some of the information needed to enroll the baby – family income, state residency – but they would be missing information about the citizenship status of the newborn. Citizen parents may have a hard time proving their citizenship status immediately, especially if they don’t have passports or were born abroad. For noncitizen parents, such as moms with green cards, whole new questions would arise about what status the child will have and the steps required to obtain that status for the newborn. One could also imagine situations where the father is a citizen but not immediately available and the mother is not a citizen.
Justice Jackson raised the question of how the citizenship status of newborns would be determined in the oral argument:
“How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule? … Are we bringing pregnant women in for depositions? What – what are we doing to figure this out?”
Solicitor General Sauer responded to Justice Jackson’s questions by saying that babies born in hospitals get “the birth certificate in the system” and “a computer program automatically generates a Social Security number” and “automatically checks the immigration status of the parents,” arguing that the system would “appear no different to the vast majority of birthing parents.” Justice Jackson probed further, asking whether the parent would have the opportunity to prove that they meet the test, and Solicitor General Sauer replied that such an opportunity would only exist “after the fact.”
Justice Jackson: “After their baby has been denied citizenship, then we can go through the process?”
Solicitor General Sauer: “Yes.”
Families who have lived through this process are scratching their heads. While the paperwork process to get a birth certificate and Social Security number begins in the hospital, it does not end there and it is far from immediate. What is immediate is the need for the newborn to see a pediatrician – usually within 1 day of leaving the hospital. That’s why systems have developed around this issue to make sure newborn babies have health coverage before they have all of these other documents lined up. For privately insured moms, babies are covered automatically for the first 30-60 days before additional paperwork must be completed. And for moms whose labor and delivery costs are covered by Medicaid, babies are deemed Medicaid eligible. At least that’s how it works with birthright citizenship guaranteed by the 14th amendment to Constitution. Without it?
We’ll leave it to others to prognosticate on the possible iterations of the Supreme Court’s ruling (expected at the end of June), but one thing is for sure – if birthright citizenship is eroded, more newborn babies will be uninsured, leading to missed well-baby checks, delayed immunizations, and worse. Parents of newborns will be at far greater risk of being exposed to higher costs and will undoubtedly need to do more paperwork — which is the last thing they need at this joyous but challenging time when a new baby arrives. This outcome would move the country in the opposite direction of where we need to go – every baby should leave the hospital with a car seat and health insurance to help them grow and thrive.