Who Counts as American? The Constitutional Crisis at the Maternity Ward

Trump’s Executive Order 14160 rewrites the 14th Amendment – targeting babies and redefining birthright citizenship

For more than 150 years, the 14th Amendment has enshrined a core promise in our Constitution: birthright citizenship.

This core constitutional birthright has shielded and protected:

• Babies who have done nothing wrong.

• Babies who have violated no laws.

• Babies brought into this world with hope and promise – hope that should be supported and not suppressed.

This guarantee, adopted during Reconstruction as a direct repudiation of slavery, ensured that one’s right to belong in this country would never again be determined by race, ancestry, caste, or the status of one’s parents. It is foundational. It is simple. It is clear.

Despite Supreme Court decisions, federal statutes, administrative law, and practice, on January 20, 2025, President Trump has unilaterally sought to overturn all democratic history and legal precedent on this issue with the stroke of a pen on Executive Order 14160.

Consequently, federal courts have repeatedly struck down the President’s Executive Order as unconstitutional, although the Supreme Court has not ultimately ruled on these cases.

However, if Trump’s policy were to go into effect, the federal government would begin imposing significant harm on one group of people: BABIES.

This is not a legislative change. This is not a constitutional amendment. It is a power grab through executive fiat, targeting infants and turning birth into a federal immigration checkpoint.

Executive Order 14160 weaponizes parental status against newborns in the delivery room, shatters equal treatment and protection at birth, and threatens to create a stateless generation of children born on American soil.

The Radical Core: Redefining Who Is an American at Birth

Since 1868, the United States has operated under a beautifully simple rule: if you’re born here, you belong here. The 14th Amendment settled this, not just as a legal technicality but as a moral commitment – a national rebuke to the Supreme Court’s infamous Dred Scott decision and inherited slavery, caste, bondage, and exclusion.

Executive Order 14160 rips this constitutional promise to babies out at the root. Instead of conferring citizenship to every baby born on U.S. soil, the order makes citizenship contingent or dependent on whether the government deems your parents the “right kind” of immigrant.

In recent days, “guidance” has been released from USCIS, the State Department, and the Social Security Administration:

A baby born in the United States will not be considered a citizen if:

• The mother is undocumented, or

• The mother is “lawfully but temporarily” present in the U.S. (such as on a student visa, tourist visa, work visa, DACA, TPS, or humanitarian parole), and

• The father is not a U.S. citizen or lawful permanent resident (green card holder)

The guidance gives some indication of the enormous bureaucratic complexity that will be imposed upon the families of babies, and these proposed rules raise dozens of other questions as to how this might be implemented:

• The paternity and citizenship status of an unwed father

• Disputes over the paternity status of a baby

• The status of a baby given up for adoption

• The status of a baby who was conceived via in vitro fertilization (IVF) or intrauterine insemination (IUI)

• Determinations in case of birth via surrogacy

• The determination of a baby’s status with same-sex parents

• The establishment of a new bureaucracy or agency to make such determinations

• The appeals rights available to a baby or child

• The citizenship of a child whose parents failed to apply for citizenship of the child

• The eligibility status of children for programs like Medicaid, WIC, or the Child Tax Credit, who are in limbo awaiting a citizenship determination

• The plight and future of babies and children who would be denied citizenship status, and thereby, might be subjected to deportation or become stateless

These are NOT hypotheticals. They are the real-world consequences of attacking children’s rights and not even considering the devastating consequences it would have.

The child’s birthplace, which is enshrined in the Constitution, would no longer matter if Trump has his way.

The only thing that matters would be how the government classifies and how some bureaucrat decides to rule upon the paperwork submitted by the newborn’s parent or parents, which may or may not occur.

In effect, Executive Order 14160 creates a tiered citizenship test for babies, built entirely on the immigration history and paperwork filings of their parents. And worse, on a newborn’s very first day of life, the government will now demand a dossier of parental proof, instead of offering the one document that has always been enough: a birth certificate.

This is no longer birthright. It’s birth review.

And it places some babies – our most vulnerable and innocent Americans – at the mercy of systems that infants have no way to influence or advocate on their own behalf.

Newborns cannot hire lawyers. They cannot walk into court. They cannot file a complaint to defend their citizenship, their own lives, and their future. Babies depend on the adults around them – parents, nonprofit organizations, overstretched attorneys, and the courts – to protect what the Constitution has promised them by birth.

Birth as Bureaucracy: Hospitals, Birth Centers, and a New Immigration Checkpoint

Until now, birth in the United States has been a state-administered, relatively simple process. When a baby is born, the hospital or midwife files the paperwork with the state. The state issues a birth certificate. And that certificate is enough to prove citizenship, to get a Social Security number, to access health care, and to start life.

Executive Order 14160 destroys that simplicity. Under this policy, the moment of birth becomes the first immigration screening with potential mounds of paperwork and a bureaucracy that acts as a newly created border checkpoint.

🏥 Hospital and Birth Center Births

In most U.S. hospitals, a newborn’s vital information is collected shortly after delivery. That data goes to the state’s department of health to generate a Certificate of Live Birth. But under Executive Order 14160, this state-level system will face new federal demands:

• Parental Immigration Status Disclosure: Hospitals will be expected – either directly or indirectly – to collect or verify the immigration status of a child’s parents. This is not something medical institutions are trained or legally authorized to do. It’s a new layer of federal scrutiny imposed on a state responsibility.

• Proof of Status for Citizenship Determination: Birth will no longer suffice for citizenship. The State Department and SSA would require documented proof that at least one parent meets federal status requirements. This means hospitals may need to delay or alter standard birth record procedures, potentially forcing parents into immediate legal interviews and fathers to undertake paternity tests in the aftermath of childbirth.

• Unanswered Questions: What happens if hospitals fail to collect correct documentation? Will children be wrongly denied citizenship? Could hospitals be held liable? Will they be audited by federal immigration officials? None of this has been answered and the ambiguity appears intentional.

And, let’s all be honest: babies will not be treated equally under this process. Zip code, race, and perceived status and origin will shape treatment and outcomes under this new regime.

President Trump, for example, has greenlighted the immigration of White Afrikaners to this country while other applicants for citizenship, including DREAMers, who grew up in this country, have pledged allegiance to the U.S. flag, served in our military, and have friends and family in this country, remain in limbo or are even subjected to deportation.

🏡 Home Births and Community Midwives

In the case of home births, which is more common among immigrants, low-income families, and those seeking culturally appropriate care, the challenges multiply:

• Proof of Birth + Proof of Immigration Status: Parents already have to compile documentation to get a birth certificate after a home birth. Now they will also have to prove immigration status – likely at a federal level – before that certificate can lead to legal recognition.

• Unclear Enforcement Mechanism: Will midwives be asked to verify status? Will ICE or USCIS agents become involved in evaluating home birth documentation? The implementation guidance leaves gaping questions.

• Chilling Effect on Safe Birth Access: Immigrant parents may be so afraid of disclosing their status that they avoid hospitals or midwives entirely – leading to unassisted births, increased maternal and infant mortality, and a further breakdown in trust between immigrant communities and the health system.

This is not just an administrative inconvenience. It is a profound disruption of the most basic moment of care and belonging. It turns the act of giving birth – one of the most human, universal experiences – into an immigration interrogation.

The New Bureaucracy: Babies with Citizenship Case Files

In the America envisioned by Executive Order 14160, birthright would no longer be granted, but instead, must be proven. And that proof hinges not on the baby’s own identity or actions, but on a paper trail of the parents' immigration status.

Welcome to the new process: citizenship by case file.

📁 What’s Changing?

Historically, a U.S. birth certificate has been the gold standard for babies. It unlocks a passport, a Social Security number, health coverage, tax credits, other supports, and participation in civic life. Executive Order 14160 seeks to dismantle that for babies.

Here’s how the new system works, according to official implementation plans from federal agencies:

🛂 Department of State: No Passport Without Parental Proof

• The State Department would require proof of at least one parent’s qualifying immigration status – U.S. citizenship or lawful permanent residence – before issuing a passport to a child born in the United States.

• A U.S. birth certificate is virtually meaningless. Parents must submit immigration documents, verify their status in DHS databases, and fill out detailed forms disclosing family history.

• If they fail to do so, the baby will be denied a passport, effectively preventing international travel and eliminating one of the most widely recognized identity documents in the world.

🧾 Social Security Administration (SSA): No Social Security Number Without Vetting

• The SSA’s “Enumeration at Birth” system, which automatically provides SSNs to newborns in 99% of U.S. births, will now be blocked unless parental immigration status can be confirmed.

• The SSA will check against Department of Homeland Security (DHS) databases. If the parents’ status is undocumented or lawfully temporary, the application is halted.

• Parents will receive a notice, then be required to:

  • Contact SSA;

  • Complete an attestation under penalty of perjury;

  • Submit formal immigration documents, often requiring in-person follow-ups.

This process is burdensome even for legally sophisticated families. For vulnerable or mixed-status households, it’s a bureaucratic wall with no clear door. And for babies, their lifelong status is at risk, but they have no control or ability to influence what happens at this most critical moment of their life.

🚫 What It Means in Practice

Without a passport or SSN, a baby is locked out of the essential systems that shape American childhood:

• No Child Tax Credit

• No Medicaid or CHIP enrollment

• No access to SNAP or other benefits

• No driver’s license

• No proof of identity for future employment or benefits

• No ability to vote

This is not an improvement to our immigration system. It’s a trapdoor built under newborns, triggered by the circumstances of their parents and the paperwork provided to the case file.

And once that trap door opens, many would be subjected to deportation or a life of statelessness in which they may never climb out.

No SSN, No Care, No Safety Net: How Babies Lose Access to Benefits

For decades, U.S. law has recognized that children, especially newborns, deserve immediate access to health care, nutrition, and identity. Birth in America has meant an automatic entry point into systems that support early development, health, and survival.

Executive Order 14160 severs that link. Without recognized citizenship, babies lose not only their legal identity but the key that unlocks every essential benefit in their early lives.

🍼 Medicaid and CHIP: No Citizenship, No Coverage

Under current policy:

• Babies born in the U.S. to mothers enrolled in Medicaid are automatically eligible for Medicaid at birth.

• CHIP’s Unborn Child Option allows states to cover prenatal care for pregnant people because the fetus is assumed to become a U.S. citizen at birth.

Executive Order 14160 would obliterate these assumptions.

• If a child is not recognized as a citizen at birth due to the parents’ immigration status, they would no longer be eligible for Medicaid or CHIP.

• States may interpret this to mean that CHIP’s prenatal coverage should also end for immigrant mothers on the logic that the unborn child is not expected to be a future citizen.

• This could strip prenatal care from tens of thousands of pregnant women, worsening maternal and infant outcomes when the goal should be to eliminate maternal and infant mortality.

🧾 The Five-Year Bar and Status-Based Exclusions

Even if a baby later secures some form of “lawful status” instead of citizenship:

• Most federal programs impose a five-year waiting period before lawful immigrants can access Medicaid or CHIP.

• Others, like SNAP (food stamps), TANF (cash aid), and WIC, may entirely exclude noncitizen children or count them differently in household benefit calculations.

Imagine: a newborn, still in diapers, already facing a half-decade delay before they can see a doctor. For a child with cancer or other life-threatening illness, this can be a death sentence.

This isn’t policy. It’s punishment and for some, a death sentence delivered at birth.

🛠️ Administrative Nightmares and Systemic Breakdown

The ripple effects extend far beyond health care:

• Hospitals will be forced to navigate new documentation requirements – determining whether a baby qualifies for care, Medicaid coverage, or even a Social Security number.

• State agencies won’t know how to process benefits for newborns without verified status.

• Families may avoid hospitals, government agencies, or clinics altogether, fearing exposure, deportation, or the loss of a child’s future rights.

This is more than a policy shift. It is a dismantling of the foundational principle that newborns in the United States are part of our national community and deserve to be treated as such from their very first breath.

This is not just anti-immigrant policy. It is anti-child policy.

What We Must Do Now…for Our Babies

We cannot afford to treat this as just another executive order, another policy skirmish, another flashpoint in the immigration debate. Executive Order 14160 strikes at the most sacred point of our civic identity: who we recognize as American.

And it targets our most defenseless population – babies – as a vehicle for exclusion.

That is not only cruel. It is cowardly. And consequently, the American people strongly support protecting birthright citizenship by a 2-to-1 margin (62-30%).

And yet, opponents of birthright citizenship are organizing and have introduced bills seeking to gut this fundamental constitutional protection (S. 304/H.R. 569, the Birthright Citizenship Act by Sen. Lindsey Graham (R-SC) and Rep. Brian Babin (R-TX) and S. 2274, the Constitutional Citizenship Clarification Act by Sen. Tom Cotton (R-AR)).

We must tell the truth loudly and name these policies for what they are:

• An end-run around the Constitution’s 14th Amendment

• A bureaucratic assault on babies

• A blueprint for statelessness

• A racialized rewriting of citizenship law

The President’s Executive Order and these bills attacking birthright citizenship break that promise. They tell certain children at birth: You are here, but you are not one of us.

We must reject that message by protecting the Constitution and our laws with our voices and our votes. Because if we don’t stand up for all babies, who represent our future and our promise, we’ve lost far more than a policy debate. We’ve lost our moral compass and abandoned the future we claim to defend.

In contrast to efforts seeking to turn maternity wards into citizenship checkpoints, there are efforts in Congress to affirm and protect birthright citizenship. Sen. Jacky Rosen (D-NV) and Rep. Delia Ramirez (D-IL) have introduced S. 646/H.R. 3368, the Born in the U.S.A. Act to block federal funding that would be used to implement the massive bureaucracy and harm to babies proposed by Trump’s Executive Order.

These bills have 16 and 124 cosponsors, respectively, and I urge you to please contact your senators and Member of Congress to urge their support for these bills.

In the United States, we do not inherit citizenship through bloodlines or bureaucratic forms. We grant it through birth, because we believe in the fundamental dignity of every child born here.

What You Can Do:

• Share this post to spread awareness about how this policy threatens children.

• Contact your elected officials to urge them to protect birthright citizenship by supporting S. 646/H.R. 3368.

• Subscribe to Kids Can’t Wait because kids can’t vote, but with your support, we can help advocate for them.