Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD

December 10, 2010: Birthright Citizenship: The Silent Costs

By Rob Tenery, MD on December 10, 2010

An awakening is occurring as to the effects of the reported eleven to twenty million illegal aliens that reside in this country along with the millions more who live here legally under the egis of visas, green cards or other arrangements with their ‘home’ country. The United States was built by a ‘melting pot’ of peoples whose various cultures and the freedoms brought this country to where it is today. Recently, there are growing concerns that these freedoms and privileges, which were so sought after in the past, are beginning to take this country in the opposite direction.

The debate on limiting our borders has metastasized to include the differences in the platforms of the political parties, inferences of racial discrimination and states’ rights versus federal control. Although in the background for decades, it has now taken center-stage in our nation’s capitol and in many state houses across the country. Arizona’s recent law to deal with its escalating crime problems, sanctuary cities and stepped up security, especially along our southern borders, are just some of the signs that the problems this country now faces must be addressed.

Politics aside, this country can no longer afford to allow our current situation to continue. We can no longer allow crime to spill across our borders. We can no longer have our states pass legislation that is countermanded by federal fiat. Finally, we can no longer afford the increased costs to our already over-stretched health care expenditures---not without cutting the quality of the medical care our citizens have come to expect.

One area of this multifaceted situation concerns what has been labeled ‘birthright citizenship’---automatic citizenship for any child born within the borders of this country. As background, birthright citizenship first arose after the Civil War as a constitutional provision clause of the 14th Amendment in 1868. It was a way to undo the Dred Scott ruling and ensure citizenship for former slaves born on U.S. soil.

Dred Scott was a slave, born in Virginia in 1799. He moved to St. Louis with his owners in 1830. He was purchased by Dr. John Emerson, a military surgeon, who moved him to posts in Illinois and Wisconsin, where slavery had been prohibited by the Missouri Compromise of 1820, and then to Louisiana. Eventually, he returned to St. Louis with the Emerson family. After the death of Dr. Emerson, it is believed, Dred Scott and his family were hired out to work for other families. After living in free territories for almost nine years, and possibly dissatisfied with his present situation, Scott and his wife, Harriet, filed suit against Dr. Henderson’s wife for their freedom. After several court battles, on March 6th, 1857, Chief Justice Roger. B. Taney delivered the majority opinion for the U.S. Supreme Court. In the ruling, seven out the nine justices ruled that Scott should remain a slave. The Court also ruled that, as a slave, Dred Scott was not a citizen of the United States and had no right to bring suit in the federal courts. The ruling appeared to sanction slavery under the terms of the Constitution by deciding that slavery could not be outlawed. Significant public outcry from the Dred Scott decision moved the country closer to a civil war. (1)

After the Civil War, the Fourteenth Amendment of the Constitution was proposed by Congress in 1866 and ratified by the states in 1868. Following Republican desires to respect the individual rights of all citizens, Section 1 made all persons born within the nation citizens both of the United States and the state where they resided. This Constitutional provision, not only reversed the previous Dred Scott decision of 1857, but also allowed these new citizens the same privileges, immunities, due process and equal protections under the law.

The Civil Rights Act of 1866 had already granted citizenship to all persons born in the United States. It was added into the Constitution by Congress to prevent the Supreme Court from ruling the act unconstitutional for lack of congressional authority to enact such a law or a future Congress from altering it by a simple majority vote.

Even after the adoption of the Fourteenth Amendment, there was still debate over the intentions of those who supported the ‘Citizenship Clause’ in Congress. The original author of the clause, Senator Jacob M. Howard of Michigan, described the clause as excluding American Indians who maintained their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Supported by other Senators, he went on to state the term jurisdiction, meaning authority to interpret and apply the law, was defined as “the same jurisdiction in extent and quality as applies to every citizen of the U.S. now and that the United States possessed a ‘full and complete jurisdiction’ over the persons described in the amendment.” (2)

The term jurisdiction was further elucidated when Justice Brennan, writing for the majority of the Supreme Court in its ruling on Plyer v. Doe, 457 U.S. 202 (1982), stated that “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.” (3,4)

The Birthright Citizenship Act, with 100 co-sponsors, requiring at least one parent to be a U.S. citizen, died in Congress last year. This year, there is again legislation now pending in the House that would restrict automatic citizenship to children with at least one parent who is an American citizen or lawful parent alien living in the United States. The bill has 94 co-sponsors, including 15 of 20 Texas Republicans in the House. (5)

Representative Lamar Smith (R-Texas), one of the bill’s co-sponsors says, “it should not apply to ‘foreigners’ and so it is being totally misinterpreted today. We’re the only industrialized country in the world that doesn’t require at least one person to be in the country legally before their child is automatically a citizen.” (6) Senate Majority Leader Harry Reid (D-Nevada) strongly opposes Smith’s and other Republicans’ opinion stating, “they’ve either taken leave of their senses or their principles.” Spokesman for the Mexican American Legal Defense and Education Fund, David Hirmojosa agrees with Senator Reid. “The 14th Amendment is the centerpiece of the Constitution and we’re not going to have anybody try (it) and it render children without a country,” he said. Elected leaders Jeff Sessions (R-Alabama), the top Republican on the Senate Judiciary Committee, Senator Mitch McConnell (R-Kentucky), the Senator Minority Leader and Representative John Boehner (R-Ohio), the House Minority Leader until January, 2011 when he takes over as the role of majority leader, all agree that a review of the 14th Amendment on this very contentious issue is in order. At least in the House of Representatives, the leadership roles, as well as the emphasis on this subject, may change with the representative shift from this recent election.

Changing a constitutional amendment is a very difficult and arduous process. Change can only come if the issue involved is ratified by 3/4th of the states and a 2/3rds of each house of Congress. (6)

Princeton University demographer, Douglas Massey, states that he has never interviewed a migrant who came to the United States just to get citizenship for their children. “They end up having babies in the United States because men can no longer circulate freely back and forth from homes in Mexico to jobs in the United States and husbands and wives quite understandably want to be together.” Counter to this opinion are numerous authorities in states along our southern border as well as a CBS interview this past summer with Senator Lindsay Graham (R-South Carolina) who recounted instances where for $2500-5000, non-citizen mothers were brought to the United States for the expressed reason of delivering their babies, so the newborn child would be a U. S. citizen.  Also referenced by the reporter on the same program, were similar offerings, but at costs up to $20,000, such as one listed on a Shanghai, China website.

In the same story run on CBS television, it was reported that in 2008 3.8 million illegal immigrants living in America have children who are now U.S. citizens. This number was up one million from 2.8 million in 2003.

The questions that should be asked are several. What are the costs, both reimbursed and unreimbursed, generated by birthright citizenship? And who pays for those costs?

According to a report released by the state of Texas’ Health and Human Services Commission, where an estimated 1.5 million illegal immigrants reside, there are between 60,000 to 65,000 babies added to their households annually (often referred to as anchor babies). During 2009, this total represented 16% of the births statewide. Similar numbers have been reported in California in 2008. In Texas in 2009, there were 400,000 births. Of these over 225,000 were funded under the Medicaid program and 28% of those were to noncitizens. Although the majority of these 60,000+ births were at Parkland Memorial Hospital with 11,071 (74 per cent of their total deliveries), Harris County Hospital District with 7,479 (82 per cent of total deliveries) and John Peter Smith Hospital with 4,645, most of the hospitals in Texas were affected. (7,8)

The Texas Health and Human Services Commission, in their 2010 report, Services and Benefits Provided to Undocumented Immigrants, listed the Texas Children’s Health Insurance Program (CHIP) expenditures for prenatal care for the unborn children of low-income women who were undocumented immigrants at $118 million in 2008. Also included in the same report, was a $717 million estimate of uncompensated medical care incurred by undocumented immigrants in the state’s public hospital districts that included 99 facilities.

Data from a large/city hospital in Texas and collected over an eighteen-month period, revealed that 67% of births covered by the Medicaid program were coded as normal and 33% abnormal. The average length of stay for the normal newborn infant was 2.42 days and increased to 22.4 days for those with complications. Also revealing, was that the itemized, average billable costs went from almost $1600 for normal newborns to over $30,000 for those infants which were coded as problems. Averaged out, hospital, billable costs/per delivery for both mother and newborn was over $16,000. The standard Medicaid reimbursement was approximately one third of billable costs for normal deliveries and proportionately, only minimally increased as the costs of the complicated post-natal care escalated. Also these numbers did not reflect the additional charges of prenatal or post natal care or the fees generated by the physicians and midwives who cared for these patients while they were in the hospital.

Analysis of Census Bureau data reveals that an estimated 340,000 births in the United States were to parents of undocumented immigrants in 2008. (9) That extrapolates out to 8 per cent of the births in this country. Carrying the extrapolations of all the costs further, at an average of $25,000/birth that also includes prenatal, delivery and post-natal care for both the mother and the newborn child, costs to the health care system would be 8.5 billion dollars in 2008. Add to that another $10,000/year for 12 future years of required public educational costs (10), Medicaid, CHIP, Perinatal CHIP, welfare, Supplemental Nutrition Assistance Program (formerly food stamps), Section-8 housing through Temporary Assistance to Needy Families (formerly AFDC) and the costs generated by those who care for them, the costs rise exponentially. It is estimated that since The Immigration Reform and Control Act of 1986, at an average of 170,000 ‘anchor babies’/year over those 24 years, adjusting for inflation, have generated costs of $165,000/child or 673 billion dollars total. In more understandable terms, babies born to non-documented parents have generated costs to the United States of over two-thirds of a trillion dollars in the last 24 years and at a current rate of 58 billion dollars/year for just their birth and education. (11)

This country faces the unknowns of the Patient Protection and Affordable Care Act of 2010 where billions of dollars are projected to be cut from the Medicare budget over the next 10 years, while adding, at least, 13 million patients to the already under-funded Medicaid program. It is incumbent on the medical profession to understand the implications of these changes and make our elected leadership aware of the fiscal strain placed on our limited health care dollars and the uncertainties we, as physicians, face. Silence is not an option.

An alternative to the divisive attempt to change the 14th Amendment of the Constitution, would be a re-evaluation of the intent by the original authors, Senator Jacob M. Howard and his supporters in 1866 of the term jurisdiction by our newly elected Congress. Even then, it would probably end up in the Supreme Court. If this discussion is to take place, it is important to remember that undocumented mothers in labor can still avail themselves to the high level of care if they present to any hospital with the proper facilities in this country through EMTALA (Emergency Medical Treatment and Active Labor Act of 1986).

The bigger question is did the authors of the original bill passed in 1866 and the Congress that included the Citizenship Clause in Section 1 of the 14th Amendment to the Constitution intend to create a life-long commitment to children born to non-citizen parents based solely on where they were delivered.

December, 2010

  1. http://americancivilwar.com/colored/dred_scott.html
  2. http://www.answers.com/topic/fourteenth-amendment-to-the-united-states-constitution
  3. http://tinyurl.com/2vaofcm
  4. http://tinyurl.com/2wzcop3
  5. Gillman, TJ. Cornyn Urges Review of Clause. The Dallas Morning News, August 5, 2010.
  6. http://www.third.com/news/14th-amendment-has-politicians-civil-rights-groups-arms_8-4-2010
  7. Texas Health and Human Services Commission, 2010.
  8. Jacobson, S. Birthright Debate Hits Close to Home. The Dallas Morning News. P 1a, 10a; August 8, 2010.
  9. Unauthorized Immigrants and Their U.S.-Born Children. The Pew Hispanic Center. 8/11/2010.
  10. The Supreme Court of the United States. Plyer v. Doe, 457 U.S. 202 (1982).
  11. Anchor Babies. Birthright Citizenship http:/bit.ly/9BHPU5. 6/21/2010.

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