A federal judge on Friday repeatedly asked an attorney for the state of Texas if denying birth certificates to dozens of U.S.-citizen children is an appropriate response to a problem whose scope is still unknown.

U.S. District Judge Robert Pitman heard oral arguments in a lawsuit filed by a group of undocumented parents and their U.S.-citizen children against the state Department of State Health Services, which has effectively blocked the children from obtaining birth certificates.

The families allege that the department has violated the children’s constitutional rights by ordering local county registrars to stop recognizing Mexican consular IDs — known as a matrícula consular — and foreign passports without valid visas, as proof of identification that the parents may use to obtain the vital records. The state argues the documents are susceptible to fraud.



“Is this a solution in search of a problem?” Pitman asked assistant attorney general Thomas Albright, representing the agency, health Commissioner Kirk Cole and State Registrar Geraldine Harris. “What makes this burden necessary?”

Pitman’s remarks came after he told the state's attorneys he would not allow them to debate the importance of birth certificates, a document he said was “the primary evidence of U.S. citizenship.”

The hearing came after the families asked for an emergency injunction ordering the health department to identify two acceptable forms of identification parents can use to obtain birth certificates.

Attorney Jennifer Harbury, representing the families, reiterated her belief that Texas changed its policies without warning in reaction to the national debate over illegal immigration that reached a fever pitch in 2011. After that, she said, Texas became the only state in the country to prevent undocumented immigrants from getting birth certificates.

But Albright said the families haven’t proven their case enough for Pitman to grant the emergency order, and instead said the issue should play out through a regular trial.

“There is no burden on us to say ‘We’re great. Our rule is perfect,’” he told Pitman. “Today is just one step in what is a longer process. I don’t think they’ve argued the proof that you need.”

Albright also focused on the Mexican matrícula, conceding it has been made more secure and tamper proof but saying it is still susceptible to fraud.

Harbury said the families would be amenable to a ruling that excluded that document from a list of approved items. Her argument, she said, is that nothing else is currently acceptable.

“Forty-nine other states accept another form [of ID],” she said.

Though he seemed to question more than one of the state’s claims, Pitman also appeared hesitant to make a decision without more information. It’s unclear when he will rule.

Friday’s hearing marks the first time oral arguments were heard in the case, which was filed in May. The complaint has been amended since to include more than 30 families, and Harbury said that at least 17 more families have expressed similar problems obtaining birth documents.

Albright declined to speak to reporters after the hearing, but Attorney General Ken Paxton released a statement shortly afterward.

“In this case, a birth certificate is the key to a person’s very identity, and these vital documents must be protected by requiring basic, common-sense forms of identification in order to obtain copies,” Paxton said. “With identity theft a growing national concern, now is not the time to relax our requirements and accept forms of identification that may not sufficiently prove that a requestor is who they say they are.”