‘Birth tourism,’ though rare, prompts talk of barring pregnant women from entering US

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The Supreme Court’s ruling upholding birthright citizenship has prompted an outcry from the far right, including members of President Trump’s own administration, who have suggested the U.S. limit the entry of pregnant women into the country.

The high court in a 6-3 decision Tuesday killed a Day 1 executive order from Trump seeking to limit birthright citizenship only to those born to U.S. citizen parents, a loss that has left some corners of the GOP strategizing for ways to head off births to foreign parents.

White House aide Stephen Miller was initially laughing with Fox News host Jesse Watters, who asked with a chuckle whether the U.S. should be “banning foreign pregnant women.”

But Miller quickly struck a serious tone.

“You have to now think very carefully about who you let into your country, even on a temporary basis, because [of] the possibility, as you said, for birth tourism,” Miller said Tuesday.

Of course, a number of immigrants in the U.S. do give birth every year, a group that includes those lawfully present on worker or student visas, those seeking asylum, as well as those with no lawful status.

There are also births from people who are in the U.S. on tourist visas, which typically let a holder enter the country for up to six months, though such cases are rare.

So-called birth tourism, a form of obtaining a visa on fraudulent grounds, is already illegal. Nonetheless, that was the topic of a memo from the head of the Department of Justice’s fraud division, who late Tuesday encouraged prosecutors to pursue such claims and consider additional charges.

“Though hard to know for certain, the most expansive albeit contested estimate based on review of U.S. Census Bureau data is that up to 26,000 babies born in the United States annually could be attributed to birth tourism—a tiny fraction of the more than 3.5 million U.S. births yearly,” the Migration Policy Institute wrote in a review earlier this year.

In the scenario described by Miller, the globe’s poor are strategically securing tourism visas, which are not easy to get, in order to give birth in the U.S. and bestow citizenship to children.

“People come here just to have babies on American soil, and that baby gets to be a citizen for life. So, you have mothers that come in fully pregnant, have a baby, go home, and again, that baby gets Medicaid, and that baby gets welfare, and that baby gets cash assistance, and can send you to leave the baby with, you know, a cousin, a relative, whatever. And then to send welfare checks back home, you can support a whole family in the third world,” he said.

Immigration advocates say Miller’s take simply does not square with reality given the steep challenges associated with traveling to the U.S., particular from developing countries.

Among the countries where visas are required to travel to the U.S., often only the wealthy are able to obtain them. And there are other options, too, for the ultrawealthy looking to move to the U.S., including the investor visa.

“It is absolutely laughable,” said Jorge Loweree, a managing director at the American Immigration Council.

“To get a non-immigrant visa, tourism visa to come to the U.S., you have to prove that you have a strong combination of social and financial ties to your home country,” he said, including that an applicant has the means both to travel to the U.S. and return to their home country and is not as risk of overstaying their visa in an attempt to illegally secure work abroad.

“The interviewing officer is required to assume that the applicant is lying, intends to remain in the U.S. past the expiration of any visa that they get at, so the person who is interviewing for a visa has to convince that person that that is not the case. … It’s a very difficult undertaking for any person who isn’t wealthy, essentially,” Loweree added.

It’s not just Miller who has the subject on his mind.

Homeland Security Secretary Markwayne Mullin, during an appearance on “Fox & Friends” Wednesday, also referenced late-stage births.

“That has happened, especially with China. … Their tourist visas — they’ll get to come into the United States or into our territories just simply to give birth. They’ll come in the eighth month, maybe one, two, three weeks left, give birth here, have a child, then they move back to China, raise a person underneath the communist regime,” Mullin said.

“This is truly a national security risk that we’re having, but were we looking at it,” he said.

Air travel in the final weeks of a pregnancy is already highly discouraged, including by airlines, which have the right to turn away passengers for whom they do not believe travel is safe, particularly after the 36-week mark.

But additionally, U.S. Customs and Border Protection (CBP) agents also already have the power to turn away those who present at the border and would need no new authorities to block a pregnant woman from entering the country.

“I do not believe that that is something that is happening at all,” Loweree said of entries by women in late-stage pregnancies.

“CBP has broad authority to turn people away at the border period. How they exercise that discretion varies considerably, but if CBP has concerns about allegations of fraud or the purpose of somebody’s travel, they absolutely have the discretion to turn the person away, and they often do.”

Other logistical aspects of securing a tourism visa would make it difficult to police the process at the interview stage. In many cases, an applicant is authorized to travel to the U.S. over a 10-year period, though the timelines of their individual trip are limited.

Many hoping to come to the U.S. would seek a visa well in advance of being visibly pregnant and could then enter the country at various periods over its durations once it’s secured.

“How do you implement some kind of policy like this meaningfully? What is the test? How are you going to prove that someone is pregnant versus not? What are you going to subject them to?” Loweree asked.

In another interview before the ruling came down, Miller suggested births to foreigners meant the U.S. wouldn’t have “a future.”

“The idea that you can have a country where you just set foot on U.S. soil and any child you have gets to be an American citizen and vote in our elections, collect our welfare, sit in our juries, sit in judgment of our fellow men and women, is such an outrage to the idea of having a country,” he said during an interview with Fox’s Will Cain.

“If this country doesn’t, one way or another, end birthright citizenship, this country doesn’t have a future.”

Despite the court win, many immigration advocates were still unnerved by the ruling.

Though a 6-3 decision, Loweree noted that in parsing the arguments within the dissents, the justices split 5-4 on arguments over whether the Constitution provides for birthright citizenship.

Justice Brett Kavanaugh voted to block Trump’s order under a 1940 law that Congress passed, which put that conventional understanding into federal statute.

It was a rare point of agreement between immigration advocates and Miller, who both argued the decision should have been 9-0 in their favor.

“Today’s ruling affirms what has been clear for over a century: that every child born in the U.S. is a citizen. While this outcome provides welcome relief, it shows how fragile even our most foundational constitutional guarantees have become,” Kica Matos, president of the National Immigration Law Center, said when the ruling came down.

“This president will continue his assault on immigrant communities and the Constitution, and we must remain vigilant and use this victory as a call to action to continue organizing. The 14th Amendment is clear and definitive, and this decision should never have been this close.”

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Brett Kavanaugh

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Jesse Watters

Markwayne Mullin

Stephen Miller

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