Commentary Law and Policy

The 14th Amendment Says You’re A Citizen When You’re Born, So No Wonder Conservatives Hate It

Amanda Marcotte

Many Republicans have been attacking, undermining, or radically reinterpreting the 14th Amendment, which guarantees equality under the law. There's a lot of reasons for this, but the common theme is undermining women's right to control when and how they give birth.

Rick Santorum loves to denounce Dred Scott v. Sandford, an infamous case from 1857 in which the Supreme Court declared that Black Americans cannot be considered U.S. citizens. It seems safe to say that Santorum is not particularly interested in the racial politics of the 19th century. The lengthy struggle of Black Americans to gain civil rights is of no interest to him. He only wields the name “Dred Scott” as a cudgel against decisions like Roe v. Wade or Obergefell v. Hodges—cases that, ironically, expanded human rights—in some sort of garbled effort to say that because Dred Scott was unmistakably wrong, so can be other Supreme Court decisions, hint hint.

But for all that Santorum likes mentioning Dred Scott every chance he gets, it turns out that he is no fan of the constitutional amendment that overturned it. Santorum has signed a pledge supporting the end of birthright citizenship. The 14th Amendment specifically states that all “persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” It was written specifically to overturn Dred Scott by rendering all Black Americans—and everyone born in the United States—U.S. citizens.

Santorum is hardly the only Republican reinterpreting, denouncing, or flat-out lying about the 14th Amendment these days. Seemingly overnight, all sorts of Republicans have decided they don’t like the 14th Amendment as it’s currently interpreted. And at the center of the various swirling controversies over it are, of course, women and what they choose to do with their bodies, with a mighty helping of racism and xenophobia in there to boot. Some Republicans are angry that women are choosing to give birth. Some are angry that they’re choosing not to give birth. Most are angry about both. But all that anger is being channeled through some staggeringly stupid and false claims about what the 14th Amendment actually says.

The most prominent attacks on the 14th Amendment right now are coming from Donald Trump and all the other Republican candidates who want to appeal to his supporters. Trump has amassed a massive following through old-fashioned nativist demagoguery, painting Latino immigrants as a menace to the American way of life who have to be kicked out before they destroy us all. He has specifically zeroed in on a popular and completely baseless right-wing idea that huge numbers of pregnant women sneak into the United States over the Mexican border in order to give birth to babies who will become automatic U.S. citizens. Conservatives frequently call these children “anchor babies,” to imply that these women are using their children as “anchors” to prevent deportation.

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It should be self-evident that this is a racist myth. It’s just a way to demonize women of color—to suggest that mothers of color don’t actually love their children, but simply treat them like paydays instead of people. This, again, is utter nonsense. But should you desire more extensive debunking, Janell Ross of the Washington Post points out that having a minor child who is a citizen isn’t a path to citizenship or really even a legal shield against deportation.

But of course the myth of the “anchor baby” is politically potent on the right. It combines two favorite conservative beliefs: That immigrants are somehow out to get us and that women are not to be trusted to handle their own reproduction.

The 14th Amendment couldn’t be clearer that birth is what makes you a citizen, but anti-immigrant politicians just refuse to accept it. Donald Trump, Rand Paul, Rick Santorum, Lindsey Graham, and Chris Christie all favor either changing the amendment or pretending it doesn’t say what it clearly says. Even though there’s absolutely no evidence to suggest that birthright citizenship does any harm—and it does a lot of good by simplifying our laws around citizenship and protecting people’s rights—these politicians give into the urge to shame women for choosing to have birth on terms that make sense for them instead of those laid out by bigoted politicians.

But that’s hardly the only way that the 14th Amendment is being reimagined by those who want to control women’s reproductive choices. Mike Huckabee has taken to running around claiming that the 14th Amendment should be interpreted as a ban on abortion, even though the Supreme Court has repeatedly upheld abortion as a legal right. 

Let’s set aside for now the fact that Huckabee is claiming that the president should basically become a dictator who ignores rule of law. His interpretation of this amendment is a complete inverse of reality. Many actual legal scholars, Justice Ruth Bader Ginsburg especially, say the opposite: That the Supreme Court should have invoked the 14th Amendment to protect abortion rights in 1973, on the grounds that women are citizens and, as citizens, should have equal rights to bodily autonomy as men.

Huckabee, clearly thinking he’s got a real “gotcha” here, is arguing the opposite: that embryos are actually citizens. By necessity, though he doesn’t explain this outright, his argument would go on to hold that women therefore cannot be citizens. As Amanda Taub of Vox points out, not being forced to give up part of your body to another person is a basic human right, even if they need it to live. So it’s not enough to declare embryos are people in order to compel women to give up our bodies to nourish them. We must also and by necessity declare women to be non-persons in order to get there. Huckabee doesn’t say that part, but his argument doesn’t work without it.

Of course, even to get there, you have to ignore a word that, as it happens, is the same word that anti-immigrant conservatives ignore with their novel interpretations of the 14th Amendment: born. It’s right there in the first sentence of the 14th Amendment: “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.” (Emphasis added.) Born, as in when you came out of your mother’s body. Not when your mother’s DNA merged with your father’s nine-and-a-half months before. Not when your parents become citizens of the United States. Not at any random point where conservatives, after assessing your racial or national background, decide you count. Conservatives frequently try to chip away at the protection of equality—what the 14th Amendment supposedly guarantees, with a variety of results—in numerous ways, but this is a broad-based onslaught.

All these attacks on the 14th Amendment are ultimately about undermining the importance of birth, an act for which you need a uterus. No surprise that the supporters of male dominance want to shift focus away from “giving birth” to something else, something cisgender men can do—ejaculate, write something on a piece of paper—as the real moment when someone becomes a citizen. But our laws should be built around what works best for our country and the people in it, all the people in it, and not just the hurt feelings of a bunch of male egotists.

News Law and Policy

Judge Blocks Mississippi ‘Religious Freedom’ Law, Calling it Discriminatory

Nicole Knight Shine

"But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined," U.S. District Judge Carlton W. Reeves wrote.

A U.S. District Judge temporarily blocked a sweeping and controversial Mississippi “religious freedom” law late Thursday, calling the legislation “arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

“The State has put its thumb on the scale to favor some religious beliefs over others,” U.S. District Judge Carlton W. Reeves wrote in a 60-page decision issued hours before HB 1523 was set to go into effect.

Reeves ruled that the bill violated the First and 14th Amendments by allowing individuals, religious organizations, and some government employees with “sincerely held religious beliefs” to deny services to, as Reeves wrote, “lesbian, gay, transgender, and unmarried persons,” potentially gutting certain privileges and legal protections—such as those stemming from the 2015 Supreme Court decision legalizing same-sex marriage.

The bill was authored by Mississippi House Speaker Philip Gunn (R-Hinds), who had called the high court’s legalization of marriage equality “in direct conflict with God’s design for marriage as set forth in the Bible,” as the Washington Post reported.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together,” Reeves wrote in his decision.”But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

The legislation, known as the Protecting Freedom of Conscience from Government Discrimination Act, was signed into law by Republican Gov. Phil Bryant in April, after clearing the Republican-controlled House and Senate.

The measure enshrined three religiously held tenets: that gender is determined at birth, that marriage is between a man and a woman, and that sex is “properly reserved” for heterosexual marriage. It determined that housing, employment, and adoption decisions could be made based on those religious beliefs.

A swift national and state-level outcry followed the passage of HB 1523, with 80 CEOs, among others, calling for its repeal as “bad for our employees and bad for business,” according to the court documents. The law had been challenged in Barber v. Bryant and Campaign for Southern Equality v. Bryant.

The state has not said whether it will appeal Reeves’ ruling. If the state does not appeal, the temporary order becomes permanent after another hearing.

“I am grateful that the court has blocked this divisive law,” said Rev. Susan Hrostowski, an Episcopal priest and a plaintiff in the Campaign for Southern Equality case. “As a member of the LGBT community and as minister of the Gospel, I am thankful that justice prevailed.”

The injunction Thursday follows a ruling earlier this week by Reeves, a 2010 Obama appointee, which blocked a provision in HB 1523 allowing circuit clerks to deny marriage licenses to same-sex couples, as the Washington Post reported. Twenty months prior, Reeves had struck down the state’s statutory and constitutional bans on same-sex marriage.

Roundups Politics

Trump Taps Extremists, Anti-Choice Advocates in Effort to Woo Evangelicals

Ally Boguhn

Representatives from radical anti-abortion group Operation Rescue praised Trump’s commitment to its shared values during the event. “I’m very impressed that Mr. Trump would sit with conservative leaders for multiple questions, and then give direct answers,” said the organization's president, Troy Newman, who was in attendance at a question-and-answer event on Tuesday.

Making a play to win over the evangelical community, presumptive Republican nominee Donald Trump met with more than 1,000 faith and anti-choice leaders on Tuesday for a question-and-answer event in New York City and launched an “evangelical advisory board” to weigh in on how he should approach key issues for the voting bloc.

The meeting was meant to be “a guided discussion between Trump and diverse conservative Christian leaders to better understand him as a person, his position on important issues and his vision for America’s future,” according to a press release from the event’s organizers. As Rewire previously reported, numerous anti-choice and anti-LGBTQ leaders—many of them extremists—were slated to attend.

Though the event was closed to the media, Trump reportedly promised to lift a ban on tax-exempt organizations from politicking and discussed his commitment to defending religious liberties. Trump’s pitch to conservatives also included a resolution that upon his election, “the first thing we will do is support Supreme Court justices who are talented men and women, and pro-life,” according to a press release from United in Purpose, which helped organize the event.

Marjorie Dannenfelser, president of the anti-choice Susan B. Anthony List, told the New York Times that the business mogul also reiterated promises to defund Planned Parenthood and to pass the Pain-Capable Unborn Child Protection Act, a 20-week abortion ban based on the medically unsupported claim that a fetus feels pain at that point in a pregnancy.

In a post to its website, representatives from radical anti-abortion group Operation Rescue praised Trump’s commitment to their shared values during the event. “I’m very impressed that Mr. Trump would sit with conservative leaders for multiple questions, and then give direct answers,” said the group’s president, Troy Newman, who was in attendance. “I don’t believe anything like this has ever happened.” The post went on to note that Trump had also said he would appoint anti-choice justices to federal courts, and repeal and replace the Affordable Care Act (ACA).

Just after the event, Trump’s campaign announced the formation of an evangelical advisory board. The group was “convened to provide advisory support to Mr. Trump on those issues important to Evangelicals and other people of faith in America,” according to a press release from the campaign. Though members of the board, which will lead Trump’s “much larger Faith and Cultural Advisory Committee to be announced later this month,” were not asked to endorse Trump, the campaign went on to note that “the formation of the board represents Donald J. Trump’s endorsement of those diverse issues important to Evangelicals and other Christians, and his desire to have access to the wise counsel of such leaders as needed.”

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Much like the group that met with Trump on Tuesday, the presumptive Republican nominee’s advisory board roster reads like a who’s-who of conservatives with radical opposition to abortion and LGBTQ equality. Here are some of the group’s most notable members:

Michele Bachmann

Though former Minnesota Rep. Michele Bachmann once claimed that “women don’t need anyone to tell them what to do on health care” while arguing against the ACA during a 2012 appearance on NBC’s Meet the Press, her views on the government’s role in restricting reproductive health and rights don’t square away with that position.

During a December 2011 “tele-town hall” event hosted by anti-choice organization Personhood USA, Bachmann reportedly falsely referred to emergency contraception as “abortion pills” and joined other Republican then-presidential candidates to advocate for making abortion illegal, even in cases of rape, incest, or life endangerment. During the event, Bachmann touted her support of the anti-choice group’s “personhood pledge,” which required presidential candidates to agree that:

I stand with President Ronald Reagan in supporting “the unalienable personhood of every American, from the moment of conception until natural death,” and with the Republican Party platform in affirming that I “support a human life amendment to the Constitution, and endorse legislation to make clear that the 14th Amendment protections apply to unborn children.

Such a policy, if enacted by lawmakers, could outlaw abortion and many forms of contraception. A source from Personhood USA told the Huffington Post that Bachmann “signed the pledge and returned it within twenty minutes, which was an extraordinarily short amount of time.”

Bachmann has also claimed that God told her to introduce a measure to block marriage equality in her home state, that being an LGBTQ person is “ part of Satan,” and that same-sex marriage is a “radical experiment that will have “profound consequences.”

Mark Burns

Televangelist Mark Burns has been an ardent supporter of Trump, even appearing on behalf of the presidential candidate at February’s Faith and Family Forum, hosted by the conservative Palmetto Family Council, to deliver an anti-abortion speech.

In March, Burns also claimed that he supported Donald Trump because Democrats like Hillary Clinton supported Black “genocide” (a frequently invoked conservative myth) during an appearance on the fringe-conspiracy program, the Alex Jones show. “That’s really one of my major platforms behind Donald Trump,” said Burns, according to the Daily Beast. “He loves babies. Donald Trump is a pro-baby candidate, and it saddens me how we as African Americans are rallying behind … a party that is okay with the genocide of Black people through abortion.”

Burns’ support of Trump extended to the candidate’s suggestion that if abortion was made illegal, those who have abortions should be punished—an issue on which Trump has repeatedly shifted stances. “If the state made it illegal and said the premature death of an unborn child constituted murder, anyone connected to that crime should be held liable,” Burns told the Wall Street Journal in April. “If you break the law there should be punishment.”

Kenneth and Gloria Copeland

Kenneth and Gloria Copeland founded Kenneth Copeland Ministries (KCM), which, according to its mission statement, exists to “teach Christians worldwide who they are in Christ Jesus and how to live a victorious life in their covenant rights and privileges.” Outlining their opposition to abortion in a post this month on the organization’s website, the couple wrote that abortion is wrong even in cases of rape, incest, or life endangerment. “As the author of life, God considers an unborn child to be an eternal being from the moment of its conception,” explained the post. “To deliberately destroy that life before birth would be as much premeditated murder as taking the life of any other innocent person.”

The article went on to say that though it may “seem more difficult in cases such as those involving rape or incest” not to choose abortion, “God has a plan for the unborn child,” falsely claiming that the threat of life endangerment has “been almost completely alleviated through modern medicine.”

The ministries’ website also features Pregnancy Options Centre, a crisis pregnancy center (CPC) in Vancouver, Canada, that receives “financial and spiritual support” from KCM and “its Partners.” The vast majority of CPCs  regularly lie to women in order to persuade them not to have an abortion.

Kenneth Copeland, in a June 2013 sermon, tied pedophilia to the Supreme Court’s decision in Roe v. Wade, going on to falsely claim that the ruling did not actually legalize abortion and that the decision was “the seed to murder our seed.” Copeland blamed legal abortion for the country’s economic woes, reasoning that there are “several million taxpayers that are not alive.”

Copeland, a televangelist, originally supported former Republican presidential candidate Sen. Ted Cruz (TX) in the 2016 Republican primary, claiming that the candidate had been “called and appointed” by God to be the next president. His ministry has previously faced scrutiny about its tax-exempt status under an investigation led by Sen. Chuck Grassley (R-IA) into six ministries “whose television preaching bankrolled leaders’ lavish lifestyles.” This investigation concluded in 2011, according to the New York Times.

James Dobson

James Dobson, founder and chairman emeritus of Focus on the Family (FoF), previously supported Cruz in the Republican primary, releasing an ad for the campaign in February praising Cruz for defending “the sanctity of human life and traditional marriage.” As Rewire previously reported, both Dobson and his organization hold numerous extreme views:

Dobson’s FoF has spent millions promoting its anti-choice and anti-LGBTQ extremism, even dropping an estimated $2.5 million in 2010 to fund an anti-choice Super Bowl ad featuring conservative football player Tim Tebow. Dobson also founded the … Family Research Council, now headed by Tony Perkins.

Dobson’s own personal rhetoric is just as extreme as the causes his organization pushes. As extensively documented by Right Wing Watch,

Dobson has:

Robert Jeffress

A Fox News contributor and senior pastor of First Baptist Church of Dallas, Jeffress once suggested that the 9/11 attacks took place because of legal abortion. “All you have to do is look in history to see what God does with a nation that sanctions the killing of its own children,” said Jeffress at Liberty University’s March 2015 convocation, according to Right Wing Watch. “God will not allow sin to go unpunished and he certainly won’t allow the sacrifice of children to go unpunished.”

Jeffress spoke about the importance of electing Trump during a campaign rally in February, citing Democrats’ positions on abortion rights and Trump’s belief “in protecting the unborn.” He went on to claim that if Sen. Bernie Sanders (I-VT) or Hillary Clinton were elected, “there is no doubt you’re going to have the most pro-abortion president in history.”

After Trump claimed women who have abortions should be punished should it become illegal, Jeffres rushed to defend the Republican candidate from bipartisan criticism, tweeting: “Conservatives’ outrage over @realDonaldTrump abortion comments hypocritical. Maybe they don’t really believe abortion is murder.”

As documented by Media Matters, Jeffress has frequently spoken out against those of other religions and denominations, claiming that Islam is “evil” and Catholicism is “what Satan does with counterfeit religion.” The pastor has also demonstrated extreme opposition to LGBTQ equality, even claiming that same-sex marriage is a sign of the apocalypse.

Richard Land

Richard Land, now president of the Southern Evangelical Seminary, was named one of Time Magazine‘s “25 Most Influential Evangelicals in America” in 2005 for his close ties with the Republican party. While George W. Bush was president, Land participated in the administration’s “weekly teleconference with other Christian conservatives, to plot strategy on such issues as gay marriage and abortion.” Bush also appointed Land to the U.S. Commission on International Religious Freedom in 2002.

According to a 2002 article from the Associated Press, during his early academic career in Texas, “Land earned a reputation as a leader among abortion opponents and in 1987 became an administrative assistant to then-Texas Gov. Bill Clements, who fought for laws to restrict a woman’s right to an abortion” in the state.

Land had previously expressed “dismay” that some evangelicals were supporting Trump, claiming in October that he “take[s] that [support] as a failure on our part to adequately disciple our people.”