Mother Jones illustration; Chip Somodevilla/Getty; Getty
In the days after the Supreme Court upheld birthright citizenship as the law of the land, an enraged Trump administration has been rigorously investigating new ways to crack down on “birth tourism,” a practice that refers to pregnant women who come to the United States solely to give birth and obtain US citizenship for their children. And to do so, they have floated an alarming option: a potential ban on pregnant foreigners.
“You have mothers that come in fully pregnant, have a baby, go home,” Stephen Miller told Fox News, as host Jesse Watters cracked about “banning foreign pregnant women” from entering the US. “That baby then gets Medicaid,” Miller continued, “and that baby gets welfare, and that baby gets cash assistance.”
In a separate Fox News appearance, wherein host Brian Kilmeade similarly suggested a blanket ban on pregnant tourists, Homeland Security Secretary Markwayne Mullin seemed receptive to the idea. “It’s absolutely a national security issue,” he said, going on to describe an elaborate scenario in which Chinese nationals give birth in the US and return to China with their newly minted American citizen babies. Once there, Mullin continued, these Chinese mothers would raise US citizens in a “communist regime,” only for them to return as adults to attend American universities where they could begin “stealing intellectual property.”
It is not illegal for foreign nationals to give birth in the US. But coming to the US solely to give birth, thereby lying on visa applications or deceiving border officials, is prohibited. So too are companies that sell birth tourism schemes. But for all the warnings about the scale and vastness of birth tourism, there is scant data on the issue. “There’s no direct data on this, which is what’s creating the confusion,” Muzaffar Chishti, a senior fellow at the Migration Policy Institute, said. “Everyone is pandering to numbers with whatever they feel like.”
“If you’re determined that this is the obsession you have, cost doesn’t matter.”
The lack of data hasn’t stopped Trump officials, who remain determined to fundamentally reshape our understanding of who is considered to be a “real” American after losing at the Supreme Court, albeit narrowly. But in targeting pregnant foreigners, they omit a key detail: A 2020 federal regulation that denies travel visas to pregnant people and gives border agents wide latitude to deny entry to women suspected of birth tourism already exists—thanks to the first Trump administration.
That regulation, according to Chishti, amounted to a “significant change in the way we structure US law,” in that it shifted the burden away from the government to establish an attempt at birth tourism to a pregnant person having to prove they weren’t traveling to the US just to give birth. If found inadmissible, the regulation also denied pregnant people opportunities to plead their cases.
So, how are such determinations made? Do Customs and Border Patrol officials, who have such broad discretion to deny anyone entry into the country, carry pregnancy tests? Have OB-GYNs been engaged to patrol airports to assess how pregnant a person is? Theoretically, we should have some answers about how such determinations are made, given that the regulation has been on the books for over six years. But when Amanda Frost, a law professor at the University of Virginia, attempted to FOIA information about how enforcement was being carried out, she never received an answer.
According to Homeland Security’s online guidance, officers will often consider “the date your child is due for delivery and the length of time you intend to stay in the United States.” They also tend to check if you have sufficient insurance to cover any medical expenses. But nothing is said about how officers determine a woman is pregnant in the first place, which is troubling considering the enormous variation in how a person’s physical appearance coincides with their gestational state.
“I don’t trust a customs official to know how people look different at different stages of pregnancy.”
“I don’t trust a customs official to know how people look different at different stages of pregnancy,” Frost said, adding that she was concerned with how the policy “polices pregnant women.”
No such concern was evident at the Supreme Court in April, when Solicitor General John Sauer claimed that 1.5 million Chinese nationals hold US citizenship because of birth tourism. But Chief Justice John Roberts appeared skeptical. When pressed on how rampant birth tourism actually was, Sauer acknowledged, “No one knows for sure.”
That’s true. But a more accurate response would note that although there is no official tally, experts widely agree that the number is far less than 1.5 million from a single country. Even the conservative anti-immigration group, the Center for Immigration Studies, estimates that there are 26,000 such births at most. Which adds up to less than 1 percent of all babies born in the US in a year.
Roberts, in upholding birthright citizenship, referenced this very lack of evidence in his opinion. “The trouble is that there is scant evidence for this dramatically revisionist view. Certainly, no one said that such a change had occurred.”
The natural question, then, becomes what more the Trump administration could do beyond enforcing the already existing federal regulations. One option, Chishti said, could be ramping up the number of women placed under expedited removals, which sidesteps the legal right to a judge—the same process that the Trump administration has used in its wider immigration crackdown to quickly deport people without a court hearing. Also on the table: prosecuting individual women, instead of organized groups that sell birth tourism services.
As for pregnancy tests at the border, that might seem extreme, even for this White House. But Chishti cautioned against dismissing the potential of such alarming— not to mention logistically complicated—measures getting added to the government’s enforcement protocol. “If you’re determined that this is the obsession you have,” Chishti said, “cost doesn’t matter.” In fact, the US has a long history of using medical tests to bar entry to foreigners, including those who tested positive for HIV and Chinese immigrants who tested positive for a slew of diseases and infections during the Chinese Exclusion Act back in 1882, as well as using forced sterilizations against Black and indigenous groups. Should pregnancy exams take place at the border, they would arrive at a moment when states are increasingly embracing digital surveillance tools to track pregnant people seeking abortions.
It certainly helps the Trump administration that birth tourism, to the extent that it is a problem, does not poll well with Americans, even though a majority of Americans support birthright citizenship as a constitutional right. That’s because many see the former as a strategy for “others” to game a system through exploitation. The reward? According to opponents, it’s largely access to the US welfare system. But for many, Frost said, Americans are more likely to disapprove of birth tourism because it insults their notions of American belonging. To them, “citizenship is not just about a passport and legal rights,” she said, “it also carries a sense of membership, a being part of ‘us’—and [birth tourism] offends those ideas.”
All of which, under the right scenario, could open the doors for more profiling. For now, it’s unclear what exactly the Trump administration has in mind. But considering the once-unthinkable ways the administration has carried out the largest deportation campaign in US history, and the unnervingly close decision that barely saved birthright citizenship, it seems reasonable to prepare for the worst.
