American Birthright
The border, perpetually closed to birth tourism flowing one way, will now be forced open to abortion tourism flowing the other way.
A FEW MONTHS ago, my mother confessed that I was almost an anchor baby. She thought about giving birth here, thinking I would benefit from U.S. birthright citizenship. (My father was completely opposed.) I’m not naïve about the kind of power that American citizenship holds abroad, but even so, it’s clear that the rights to which U.S. citizens are entitled are diminishing.
Before Monday’s news about the Supreme Court’s plan to overrule Roe v. Wade, two children born on either side of the U.S.-Mexico border could grow up knowing that if they or a loved one ever needed to get an abortion, they were guaranteed the right to obtain one. If Justice Samuel Alito’s opinion holds as written, only one of them will.
For decades, the same politicians who have pushed for abortion to be outlawed in the United States have also criticized immigrant women for coming here to give birth to what they call, pejoratively, “anchor babies.” They were on a mission to keep brown mothers from giving birth on U.S. soil, using them as a cudgel to argue for more barbed wire, more Border Patrol officers, and a higher wall.
Now, some of the same politicians are trying to force people on this side of the border to bear children.
Soon enough, the only recourse for a safe abortion for a pregnant Texas resident may very well be to cross the border and seek refuge in Mexico, which this past September decriminalized the procedure nationwide. The border, perpetually closed to birth tourism flowing one way, will now be forced open to abortion tourism flowing the other way.
What Dobbs does is not augment the rights of the fetus, but diminish the rights of the pregnant citizen.
Centuries of debate on this topic have hinged on how we define the word “person.” At which point, for instance, does a fetus become a person? When does that “person” begin to accrue rights? How should we measure that precise, objective moment when the state must protect potential life to some degree? This debate accepts, as a premise, that there is such a thing as something other than a person; if there is, then that entity may accrue some rights, as well.
That distinction is crucial because society is always searching for some principle to organize around: if the fetus and the parent have an equal right to life, what should occur when the fetus’ presence inside the womb threatens the parent’s life? Roe and its progeny guaranteed that the rights of that not-quite-yet person wouldn’t end up having a higher priority than the rights of the living, breathing, conscious person that carries the fetus. What Dobbs does is not augment the rights of the fetus, but diminish the rights of the pregnant citizen. (And I don’t mean citizen here in that nationalistic way.)
To be sure, law also accepts the premise that there are people that are not quite full persons—in other words, when the law says “We the People” it does not always mean “all of us.” Of the Constitution, Jill Lepore at The New Yorker writes:
Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” … Legally, most women did not exist as persons.
Nativists also conceive of the alien immigrant body—and by consequence, its rights—as not yet fully gestated but possessing the potential of American citizenship. The problem is that immigrants are living and breathing beings who work, cook, love, dance, feast, while fetuses are not.
The way we have treated immigrants set the precedent for a separate legal category, subcitizenship, in which people reside perpetually with no entitlement to full rights, even though they are living beings who need (and are entitled to) those rights. That lack of rights inevitably results in bodily harm: For pregnant people, that may now mean resorting to an unsafe abortion or significantly giving up their sexual and reproductive freedom. Holding open the promise of full rights at some point in the future by taking those rights away now is unbelievably effective at securing obedience. With it also comes a constant, oppressive, agonizing anxiety.
If you’ve ever bought Plan B for anyone, this should matter to you, too.
Justice Alito included in his draft opinion a chilling wishlist of basic freedoms that many of us are now dearly holding onto. As he made clear, the right to marry interracially; the right to marry while in prison; the right to obtain contraceptives; the right to reside with relatives; the right to make decisions about the education of one’s children; the right not to be sterilized without consent; the right to have sex with anyone we want; and my right to marry my partner are all built on shifting sands. Even though just a few years ago the decision in Obergefell v. Hodges set in motion a seismic change in securing marriage equality worldwide, the United States is going back on its own promise. “None of these rights has any claim to being deeply rooted in history,” Alito wrote. An erosion of the right to privacy in this order of magnitude would be so consequential that it would fundamentally alter everyone’s ability to participate in society.
Among the most terrifying aspects of the draft opinion is that all lawyers are taught to do the kind of maneuvering Alito does. Law school is designed to teach people, at a minimum, to manipulate doctrine. If a right is rooted in recent history, we can widen the timeline and argue that for most of the country’s existence there was no such right. If an advocate argues the case is about more than just abortion—personal dignity and autonomy, say—then we can say that those rights are not absolute. “While individuals are certainly free to think and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’ and ‘the mystery of human life,’ they are not always free to act in accordance with those thoughts,” Alito writes.
This exercise does not require a lot of intellectual work, making it all the more frightening. Because the law by itself never tells us what to do, lawyers have to choose how to wield it. On Wednesday, Texas Gov. Greg Abbott told a conservative radio host he’s considering challenging a 1982 Supreme Court ruling that mandates the education of undocumented children in public schools because prior decisions have held that education is not a right, either. (I’ve written about that ruling some, here.)
That’s why the end of Roe represents a democratic backslide. Across Latin America, popular movements in places like Colombia, Argentina, Costa Rica, and Mexico have been forcing their countries’ institutions to catch up to reality—that for millions of people, freedom includes the ability to decide what choices to make about one’s body. That struggle was arduous, took decades to build, and went against the deeply entrenched Catholicism of the entire continent.
Soon enough, U.S. citizens will know what it’s like to cross the border looking for that better life. They will have the privilege to do that and return if they so desire.
How many undocumented mothers will wish they hadn’t come here at all?
This week, I’m adding below some resources and writings by individuals who are especially close to the cause of abortion. If there is anyone whose work you’ve enjoyed in recent days, drop a comment below. Oh, and remember, it’s not just cis women who need abortion access.
This is so insightful. Thank you.
Great focus on connecting various ideas of "birthright" here. Excellent analysis.