Is birthright citizenship still in effect? What to know as Supreme Court weighs major case

On April 1, the United States Supreme Court heard oral arguments in a case called Barbara v. Trump. This case, brought by the ACLU and other immigration advocates, challenges an executive order that the President signed last January — on the very first day of his second term in office — which aims to undo birthright citizenship. The executive order, titled “Protecting the Meaning and Value of American Citizenship,” specifically sought to limit this constitutional right to people born in the U.S. to at least one parent who is also a U.S. citizen or lawful permanent resident. 

This guide provides a brief historical overview of birthright citizenship and explains what the litigation surrounding this issue means for people who may currently be pregnant and for those who gave birth after the executive order was signed. 

What is birthright citizenship? 

Birthright citizenship is a type of citizenship that is granted to people upon birth on U.S. soil. This legal principle was enshrined into law by the 14th Amendment of the U.S. Constitution and has been interpreted since 1898 to mean that anyone, regardless of race, who is born in the U.S. is automatically a U.S. citizen.  

The language in section 1 of the 14th amendment states three things: 

1. All people born or naturalized in the U.S. are citizens of the U.S. and the state in which they reside;
2. States are prohibited from making or enforcing laws that interfere with the rights and privileges granted to citizens; 
3. Any person within the U.S. is entitled to due process and equal protection rights. 

Trump’s executive order focused on the first part of section one of the 14th amendment by attempting to narrow the scope of people who could be considered U.S. citizens upon birth. 

If SCOTUS sides with Trump, who would be affected by the birthright citizenship executive order? 

The executive order signed by Trump attempts to prevent the following people from acquiring birthright citizenship:

• People born to mothers who are unlawfully present and whose fathers are also not U.S. citizens or lawful permanent residents; 
• People born to mothers who may be lawfully present but have temporary status such as TPS, DACA, or here on a tourist visa and whose fathers are not U.S. citizens or lawful permanent residents. 

In other words, if the Supreme Court sides with Trump, any babies born to parents without lawful status after February 19, 2025 would not be considered U.S. citizens.  

Timeline of the lawsuits challenging the executive order  

• January 20, 2025: Trump signs Executive Order
• January 21, 2025: Multiple states, 2 cities, and various immigration advocates file lawsuits in WA, MD, MA, and NH to prevent the order from being enforced
• January 23, 2025: A judge puts a temporary hold on the order from being enforced
• February 2025: 3 federal district judges issue separate injunctions preventing the order from taking effect
• March 13, 2025: the federal government appeals and asks the Supreme Court to limit the various injunctions to only the specific plaintiffs in the lawsuits 
• June 27, 2025: SCOTUS rules that the injunctions only apply to the specific plaintiffs in each case and not nationwide, which means that the executive order would go into effect in the 28 states that did not challenge the order 
• June 27, 2025: the ACLU files a class action suit that would include all babies in all states affected by the executive order, this is the Barbara v. Trump lawsuit
• April 1, 2026: SCOTUS hears oral argument 
• Late June or early July: SCOTUS expected to deliver final decision on the Barbara v. Trump lawsuit

What if I gave birth after February 19, 2025 or am currently pregnant?

Because of all of the lawsuits that were filed challenging the executive order, nothing new has gone into effect yet. This means that if you are pregnant and will give birth soon or gave birth after February 19, 2025, your baby will be or is a U.S. citizen, regardless of the immigration status of the parents. The Supreme Court will issue a final decision on this issue sometime in June, so for now, nothing has changed. Your baby’s citizenship rights, assuming they are born in the U.S., are protected. 

For more information, check out this know-your-rights flyer and this web page. 

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