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Excerpted From: Michael H. LeRoy, The Unborn Citizen, 108 Georgetown Law Journal Online 118 (2020) (73 Footnotes) (Full Document)


MichaelHLeRoyIn November of 2018, the Alabama State Legislature amended the Alabama State Constitution to declare the state's policy of protecting the rights of the unborn. The amendment reads:

Sanctity of Unborn Life.

(a) This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.

(b) This state further acknowledges, declares, and affirms that it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.

Shortly afterwards, in May of 2019, the Governor of Alabama, Kay Ivey, signed the Alabama Human Life Protection Act into law (“the Act”). The Act declares it a felony to abort or attempt to abort an unborn child, except when carrying forward with the pregnancy imposes a “serious health risk to the unborn child's mother.” By granting rights to an unborn child, the amendment and the Act combined have significant implications for immigration, specifically birthright citizenship.

Birthright citizenship has long existed in the United States. The Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Colonies adopted birthright citizenship in common law cases. The Supreme Court upheld birthright citizenship in United States v. Wong Kim Ark.

By declaring that life begins at six weeks, Alabama blurs the distinction between conception and birth as the starting point of personhood. Motivated by religious values, the law appears to reflect aspects of Catholicism, Islamism, and Protestantism. First, it reflects ensoulment under Catholic theology and tenets of the Prophet Mohammad in the Qur'an of which consider forty days of gestational life as the beginning of personhood. The concept of ensoulment coincides with the Act's suggestion that an unborn child's personhood is medically detectable six weeks (forty-two days) into gestational life. Although ensoulment pegs the beginning of personhood later than some Protestants scriptures, in other aspects, the Act also reflects the Protestant viewpoint that personhood begins at conception. On the other hand, Jewish law appears to view birth as the start of personhood idea that corresponds to the notion that only a born person can acquire American birthright citizenship.

Although there is no theological consensus about the starting point of a human being's life, this Article presumes for the sake of argument the validity of Alabama's perspective that life begins at creation, and that it is verifiable with a detectable heartbeat. It also connects these public policy judgments to the religious underpinnings upon which Alabama overtly relies to justify the law. It asks: if an abortion physician faces a Class A felony conviction for ending the life of an unborn person, how can Alabama avoid the legal implication that all of its unborn persons acquire birthright citizenship--and attendant rights--once this unborn person's heartbeat can be detected? As I explain below, Alabama must acknowledge that an unborn child in Alabama is a U.S. citizen, no less so than any person who is born there.

[. . ]

A statute “says what it means and means what it says.” However, there are reasons to doubt that Alabama's constitution means what it says by declaring “support [for] the sanctity of unborn life and the rights of unborn children, including the right to life.” In the United States, 51% of pregnancies are unintended, and 40% end with an abortion. In 2011, the rate of unintended pregnancies for poor women (60%) was twice the level for the wealthiest group of women (30%). However, the Act was passed without expanding Medicaid to cover all poor pregnant women who need neonatal care. Thus, Alabama has created significant economic challenges for the unborn children in the wombs of its poorest women without addressing these hardships.

Additionally, Alabama's ALL Kids health insurance program fails to mention unborn children at all, disregarding their neonatal needs. Children of unlawful immigrants are treated even worse. ALL Kids specifically excludes them from coverage. This discrimination is part of Alabama's comprehensive anti-immigrant public policy.

Alabama's lack of coverage for immigrant children and unborn children leaves immigrant mothers, like Sofía's mother, without many options. Not only are immigrant mothers and mothers of unborn children denied benefits assistance in Alabama, but the federal government denies young immigrant mothers access to abortions nationwide. This leaves them no other option than to carry the pregnancy to term, but without support. J.D. v. Azar, involving the Trump Administration's denial of abortions for unaccompanied immigrant minors, reveals hardships faced by people like Sofía's mother. Using language similar to words in Alabama's right-to- life laws, the Director of the Office of Refugee Resettlement has a blanket policy to deny teenager requests for abortions because his agency provides refuge “to all the minors in our care, including their unborn children.”

This Article examined some of the consequences of this profoundly involuntary parenthood law. It concludes by suggesting measures to secure Sofía's rights. The sequence of these actions is important: (1) she must have a legal identity, (2) she must have access to basic welfare benefits, and (3) she must have subsistence from her mother's employment.

First, Sofía needs a birth certificate even though she has not yet been born. This will particularize her legal identity on the same terms as Alabama children who have been born. Sofía will encounter difficulty, however, because of Alabama's literal focus on live birth as a condition for a birth certificate. If Sofía's mother seeks a birth certificate for Sofía once her heartbeat is detected in accordance with the Alabama right-to-life law, her request should be granted in accordance with the state's constitution and unborn child statute.

Second, if Sofía's mother has no other minor children, Sofía will need a birth certificate to establish that she is a dependent minor so that her mother can have access to Alabama's version of Temporary Assistance for Needy Families (TANF). This program differs from ALL Kids, which is a safety-net health insurance program, by providing income support. Sofía's mother will be ineligible for these family benefits unless Sofía has a birth certificate. Legislation or a court ruling will likely be necessary to declare Sofía a dependent unborn child. That declaration should recognize that Sofía is an American citizen in utero. However, even if a court rules that Sofía is a dependent unborn child, her mother still urgently needs legal employment because Alabama's welfare laws make Sofía's mother ineligible for benefits due to her unlawful alienage.

Third, Sofía's mother will need an Employment Authorization Document (EAD) to be lawfully employed. Her chances of acquiring an EAD will depend on whether she falls into any of the temporary legal categories that President Trump has rescinded, but that remain in place due to court injunctions, or whether she qualifies for another immigration status. Sofía's mother should assert that Sofía is an unborn child under Alabama law, with plenary constitutional rights, and that Sofía is an American citizen by virtue of the birthright clause in the Fourteenth Amendment.

To conclude, the fundamental law in Alabama recognizes the sanctity of unborn life, but it does not recognize the legal practicalities of being a born child. Thus the law does not explicitly confer benefits for Sofía's care or grant her U.S. citizenship status. The state's emphasis on “sanctity” can only mean that the unborn Sofía has “holiness of life and character.” The public policies of Alabama, acting in combination with President Trump's hostile policies toward unlawful immigrants, place the welfare Sofía's mother, in her pregnant condition, in danger. As for Sofía's fragile unborn life, these pro-life and anti-immigrant policies prove once again that inequality is an ongoing reality for many American children--a reality that begins in a heartbeat.

Professor, University of Illinois at Urbana-Champaign School of Labor and Employment Relations and College of Law.

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