the supreme court could have upheld a mississippi law without cutting roe v. wade. in fact, before ruth bader ginsburg died, that is all mississippi was asking to do. but once she was replaced by amy coney barrett, once conservatives understood they had conservative control over the supreme court, they switch their arguments to asking the supreme court to completely destroy roe v. wade and planned parenthood, which is exactly what sam alito and five conservatives were willing to do. the way this decision came down did not have to be like this. they didn't have to overrule roe v. wade, they wanted to. this is the extremists that we have right now with the conservatives in control of the supreme court. host: can you explain what the 14th amendment does and does not do? guest: according to conservatives on the supreme court, only protects what the white male in slavers and colonists who goaded at the time believe. so if a dead white man did not give you right in the 19th century, you don't have them, according to the conservatives on the supreme court. this idea that the 14th amendment must also be cable to the white men that ratified it, no person of color was about rights or drafts on the 14th amendment. no woman was about to write or draft on the 14th amendment. it was only a privileged group of white men. according to sam alito, if those white men didn't think you should have rights, you don't. host: do you believe the constitution protects the right to an abortion? if so, where in the constitution does that fall? guest: under the first amendment under the establishment of religion clause, the idea that life begins at fertilization is a religious idea, not a scientific one. it is protected under the first amendment. i believe the constitution also protects the right to abortion under the eighth amendment which bans cruel and unusual punishment. i would say forcing a woman to give birth against her will is cruel and unusual punishment. the constitution protects abortion under the ninth amendment which says we have unenumerated rights. i believe you can find those protections there. i believe abortion is protected under the 13th amendment which says clearly that involuntary servitude is in constitutional in the united states. forcing a woman to give birth against her free will would be involuntary servitude. i believe abortion is protected under the 14th amendment which is an equal protection of laws show happen. i believe abortion was protected under the 14th amendment substantive due process logic, which is what everybody believed for 15 years until they said no on friday. host: elie mystal is with us. taking your phone calls. republicans, (202) 748-8001. democrats, (202) 748-8000. independent, (202) 748-8002. we will get to your calls in a second. elie mystal all, concern among the justices, the dissenting justices in the opinion that this is a slippery slope. that this opens up other rights protected under the 14th amendment for the supreme court to go back and revisit. seeking to allay those concerns, justice alito wrote this in his opinion. the dissent suggests our decision calls into question griswold and eisenstadt and marzano burchfield but we have stated unequivocally that nothing in this opinion should be cast out on precedents that do not concern abortion. we have also explained why it is so, rights regarding conscious traction and same-sex relationships are inherently different from a right to abortion because the latter, as we have stressed, uniquely involves what roe and casey terms potential life. guest: who is the we that sam alito is talking about? he is not talking about his own conservative friend in clarence thomas. it was not the defense -- dissent going off the rail saying they were worried about the slippery slope. it was the concurring. he clearly stated that he thinks this decision, the dobbs decision, the overturning of roe v. wade, should also open up a re-examination of cases like same-sex marriage, contraception , like the right to marry. clarence thomas is saying that that is what they are coming for next. you know who else is saying this? other senators like mike braun who says that loving v virginia, the case that protects interracial marriage, he thought that should be overturned and returned to the states. he walked that back. then texas senator john cornyn also said that he thought they should review over shell, the same-sex marriage case. republicans spent 50 years saying they were going to take away abortion and now they have done it. a lot of people said they will not be that extreme. they were going to be that extreme and they pretty much told you so. now it is the thing that people said that republicans were not going to take away -- now that gay marriage is ok? no it is not. these republicans have the power and they have the vote and they will take a hammer to liberal democracy post-world war ii. host: elie mystal is our guest. you can see his work for the nation where he works as a justice correspondent. or you can call in and ask a question. the phone lines are open. linda in decatur, georgia. independent. good morning. caller: i want to know why there has been no talk vasectomy's for men. that is useful birth control. i wonder if he had a comment on that. guest: what i would argue is that the 14th amendment should protect a woman's right to choose, just like it protects a man's right to choose or not choose a vasectomy. i don't think the way to solve this wrong is to do additional wrong. there is a way to solve this. protect women and their choices and their bodily autonomy. you don't protect women's bodily autonomy by taking it away from somebody else. you protected by protecting it. you pass laws. i argue you should expand the supreme court. lots of things that we can do to restore what the supreme court has done. but we should focus on protecting people as opposed to hurting other people so they know how it feels, although i appreciate your desire. host: you talk about expanding the supreme court. president biden would have to agree to do that. i wonder your thoughts on his response from friday, the response of this administration to this. guest: when biden says that he will not call for ending the filibuster or for expanding the supreme court, what he is saying is that he will do nothing. unless you eliminate the filibuster or codify rover weight -- roe v. wade is federal law, expand the supreme court so that the justices who just overturned 50 years of precedent don't turn around and overturn and ask of congress, then you get nothing. the conservative supreme court has proven itself. it has said that it does not care about past legal precedents. it does not care about rights unless list of white men gave you those rights in the 19th century. that is what the conservatives are doing right now. either you accept that, as biden is apparently willing to, and you get nothing, or you do what is necessary to reform the court, the senate, reform our politics, so that rights can be protected. host: if you eliminate the filibuster and codify abortion under law, what happens if and when at some point down the road public like a diskette a majority in the house, presidency, choose to revisit this? guest: they will. this is politics, right? if you pass something, republicans will overturn it. there is no version of events where you can do something that is republican-proof. republicans don't want people to have rights, democrats do. note accordingly. those are always -- about accordingly. those are always your options. people seem to think that because it was a supreme court ruling, because people like brett kavanaugh and neil gorsuch went to congress and lied about what they thought about president -- precedent, they thought that they were safe from that. either vote for the people that will protect human rights and the plurality of the nation or you vote for the people who promise to take it away. those are always your choices. host: lawrence, south carolina. suzanne is a democrat. good morning. caller: thank you, c-span, thank you, attorney mystal. i'm excited to ask you the question. i follow you on twitter, i follow your books -- i read your books. why doesn't the president want to expand the court? guest: i don't know, we are not buds. i cannot speak to his heart. but what i can say is based on his 40 years of public service, joe biden, and many democrats are institutionalists. they believe institutions themselves have power and value. they believe the institutions alone will save us. as long as we have good people running the institutions, they believe that is enough. i counter that by looking at what institutions have done historically. what we have seen from the supreme court, historically has been a force for people in this country. everybody thinks the supreme court -- warren, roe v. wade, miranda. but that was a really small time period. 1954to 1982. that is about when any other time. from1787 to 1954, and for the past 40 years, the supreme court has been a conservative block on the rights of everybody else. one of the ways i like to explain this. tell me the first lawsuit brought under the 13th amendment. that is the amendment that prohibits, makes unconstitutional slavery. the first lawsuit was brought by white people who argued in louisiana that granting a monopoly to slaughter was akin to economic slavery for poor whites in the louisiana. the supreme court, not congress, not the president, rejected the lawsuit and said the 13th amendment was only for " the slave race" and not for anybody else. even when you pass a constitutional amendment, certainly a congressional act, the supreme court has the ability to cut those acts out at the knees. as long as you respect that institutional ability to do that, they will always do that. we need to reform the institution, not rely upon it. that is the difference between a joe biden and many established democrats, and people like me, reformers, who want to change the institutions, as opposed to just hoping they do good. host: the book that came out this spring by elie mystal, "allow me to tort." taking your phone calls this morning for the next 30 minutes. this is buck inlet center, kentucky. republican. good morning. caller: good morning. two quick things i want to say to the guess with all due respect. he keeps talking about the 14th amendment. i would like to remind him that the text of the 14th amendment says no one shall be deprived of their life, liberty, or property without due process of the law. i could argue under that that abortion should be legal at the federal level. second of all, he keeps talking about bodily autonomy. i would like to know where the guest was when new york city was basically telling its citizens that you could not participate in everyday life without getting the covid-19 vaccine. it would seem to me that was a violation of people's freedom to bodily autonomy. guest: are you really going to make a false equivalency of putting a cloth mask on your face and being forced to carry a pregnancy to term against your will for nine months? is that actually the argument you want to make, buck? caller: i am making an argument about vaccines, not the mask. guest: i am making the argument about whether women can be turned into incubators. i will argue that no legitimate government, no federal, state, no legitimate government can rent out a woman's body against her will for nine months. as far as your textual analysis of the 14th amendment, you say protect life. first of all. second of all, your idea is based on a religious believe of when life begins. other people do not share your belief of when life begins. other religions do not share your belief of when life begins. trying to take a secular law and wedge it into a religious believe is again an illegitimate use of power. host: trisha is next out of north bergen, new jersey. independent. caller: good morning. i hope that you can hear me. i'm sorry, i have a sore throat. my comment is, i am jewish, and i have a hard time understanding how this abortion -- the christian belief that life begins at conception. in judaism, the baby does not have a soul until it is born. how is my religious freedom being protected? guest: your religious views are not being protected by this christian theocratic court. this is what i've been saying. the decision that abortion is illegal or unconstitutional is rooted in christian fundamentalism. other religions do not believe -- this is not to say of people with no religion what they believe. the only legitimate way to run a society is to allow people the freedom to choose for themselves what they believe about their own bodies. that should be obvious. the hypocrisy of the supreme court is that they will not allow for a religious belief that is against their christian fundamentalist view of when life begins, but they will absolutely allow for secular laws to be overturned if your religion also demands that you are a bigot toward gay people. the hypocrisy of the supreme court is really on display through not just its decision in dobbs but across a number of issues. host: we focus so much on the dots case, and we have throughout the program today, but we should point out there are more orders coming down from the supreme court today. seven cases remaining. what are you watching for, which should viewers be watching for here coming up in the next half-hour? guest: 10:00, more decisions be made the biggest one i'm waiting for is when the conservatives on the supreme court revoke essentially the clean air act, destroy the administrative state. west virginia versus epa. it's about whether the epa has the authority to regulate the air under the clean air act. what i fear, six conservatives and neil gorsuch will say, the epa doesn't have the authority, and courts, not the executive agencies, not professionals, not the experts have the right to decide how much pollution is allowed in the air. that will be very bad. that was always going to be the second worst decision from the supreme court this term behind dobbs. host: did we learn anything new about the roberts court in this term? guest: no. they are who we thought they were. they promised to do this. donald trump promised to elect only pro-life judges. they stole the seed from barack obama. once they promoted amy coney barrett after the election to replace, the writing was always on the wall. maybe people were addled, and believed attempted rapist brett kavanaugh, maybe people were dumb enough to believe him. i didn't. i didn't believe neil gorsuch, i knew what they were going to do. now they have done it. host: does star decisive smita anything? -- stare decisis mean anything? guest: not to conservatives. the idea that you should not overturn a previous supreme court case oblique because you didn't like it. you should overturn it because something has changed. when they overturned plessy v ferguson, brown v. board of education, there was all of this evidence that they brought forward. they argued -- i disagree -- but they argue that the white people could not have known that the black people were people. they said they overturned plessy versus ferguson because of this new information about whether or not black people are people. if you go forward to dobbs, you don't see that. there is no deep analysis and how the world has changed from 1972. all that work that is supposed to go into overturning a president, that was not there. they just said, we don't like that old decision, so we are going to overturn it. if they can do that, they can do that to anything. all of these presidents that we are talking about, obergefell, contraception, brown v. board of education, all of that is on the table because conservatives have six votes. as long as you a lot of to have six votes, all of these rights are under threat. host: massachusetts. rachel on the line. good morning. caller: good morning. somebody who can talk. how far we have come since we have been legal for abortion. that is not my choice, will never be. i am a 17th child. my mother had all of us, all of my brothers went into the service. we were responsible. if my brothers were downtown, the cops would see them, they would say you better behave because i'm going to call your mother. responsible. we had to obey. they could be decent people. you get in trouble, my mother would fix you. she will twist your ear. host: what is your comment or question? caller: you can talk all you want, but having an abortion is not the answer. where have we come? guest: says who? did anyone force her mother to have 17 kids? would you have accepted if the state of massachusetts said we need more people for the army, so rachel's blog, get cracking. would that have been a good solution to force her mother to have more children than she wanted to? no. all i'm saying is the government has no business inside people's hoo-haws. it is actually a really simple position. women who want to give birth can. i am a guy, this is not something that is going to happen to me. i have been around birth, seems pretty painful. i'm amazed that anybody would want to do it, certainly for a second time. it is a miracle. i'm very happy that there are women who are willing to do this, but there are also not. it is a simple position. caller: i don't think my mother wanted 17 children but she took everyone of them. guest: you don't think your mother wanted 17 children, so it is good for the state to force for the people to do what your mother didn't want to do? caller: nobody forced anybody to do anything. guest: even the supreme court decision has no exception for rape or insist. the supreme court is the literally willing to force a woman to give birth against her will. caller: no. you have to take responsibility. if you impregnate somebody, you are responsible. guest: i'm just telling you what the supreme court said. if you don't like what they said, maybe you shouldn't vote republican. host: howard from maryland. democrat from maryland. caller: elie, thank you for being a voice of reason we would i appreciate it. i bought your book. now, i want to say this. oh ye hypocrites. i have heard callers talk about how a fetus is supposed to be protected. yet, when they are born, then it is open season for them to be killed. how are you going to protect somebody or something that is not of this earth right now, and then when they are born into this earth, you treat them like going to a fair. they have those ducks rolling across and you shoot those ducks. this is what is happening. i have heard many collars on this line talk about the bible, thou shall not kill. in my estimation, when a fetus becomes a living person, 7, 6, 5 years old, in school, and they are going to school to learn, and then they are shot down mercilessly when a father goes to get a cake for his child, and they are shot down mercilessly, where does this supremacist court, white males and one handmaiden come into effect, to sit up there and tell us who we are and who we are to support? guest: one thing that howard brings up that i want to remind people of. we can tell, even the conservatives who are saying, embryos are people, they don't actually believe that born alive babies are people. we know that because they don't protect babies from being shot at school. they don't provide for babies education or welfare. they will not, some of these conservatives will not give that baby a toothbrush if that baby doesn't happen to be in the united states. the idea that you can care about life for the nine months during gestation, but don't care about life the minute it is breathing on its own, is a lot bit hypocritical to me. again, the point here is not life for these people. it is to control women. they don't care about the life what is -- once it is outside the woman. they don't care about embryos. if people really thought that embryos were babies, there are embryos in frozen cages in fertility clinics all across the land. go free them and bring them to life if you think that is life. they are not doing that, because we know who needs fertility services. they are not talking about fertility clinics, they are not talking about born children who need health care. they are talking about only for those nine months when that embryo or fetus can be used to control a woman's body. that is when they suddenly care. that is how you can see the hypocrisy. host: you bring up school shootings. i wonder what you think about the bipartisan gun safety law. do you think it will help to end mass shootings in this country? guest: of course not. it doesn't van assault rifles, it doesn't significantly restrict gun access. it is nice, better than what they had before. i imagine the current supreme court, which just dumped its nose at 50 years of supreme court precedent, making pretty much every state in open carry state, turning every state into texas, i imagine the supreme court will strike down the bipartisan gun law as soon as they can get around to it in 2023 or 2024. if you don't expand the court, reform the court, if you allow six conservative theocrat to control the court for a generation, you get nothing. host: a black guy's guide is the name. what is the black guy's guide to the second amendment? guest: the idea that the right to bear arms includes a right to personal arms is not the original intent of the second amendment, it is not the original meaning, it is not how the second amendment was understood by the people who wrote and ratified it. that is an invention by the nra in the 1970's that the second amendment confers a personal right to own guns and defense. that invention by the 1970's was not given voice in the supreme court until 2008 with scalia's d.c. versus heller decision. all of this is modern. when you want to go to the actual reason for the second amendment, you should ask the people who wanted it in their. the people that wrote the constitution, they didn't think the constitution needed an amendment. they thought it was fine. it was the antifederalists who thought the constitution needed to protect minimum rights, the ninth amendment, unenumerated rights. one of those was a second amendment, a well regulated militia being necessary. the reason why they wanted that, why militia was important to that right, the militia was the principal way of putting down slaverables. it is difficult to keep people in bondage until you have a military superiority over them. in the south and in most places they had that at the founding. but there were pockets in virginia and south carolina where enslaved people outnumbered the whites, where guns were not easily available. occasionally, those plantations would revolt. the principal way of putting down a rug what was the well-regulated election. in the initial constitution, the idea of who could raise a militia was in the air. people thought only the federal government could raise the militias, not the individual states. so the antifederalists were worried about this, and they wanted to make sure that the second amendment made sure that states could make their own militias, and they said so. they'd said so in speeches. you can go back to george mason. there are speeches in the virginia house of legislatures where they said this was their logic for the second amendment. that is why it is there, not for an individual right to bear arms. it is for the well-regulated militia putting down slaveholders. host: 10 minutes left in our program with elie mystal, joining us, taking your phone calls. eric is in odenton, maryland. line for republican. good morning. caller: yes, sir. first of all, ask your guy here you should not be yelling at folks. that does not win anybody over to his side of the argument. second of all, i don't believe he read with the supreme court put out in the decision. all they did was push a back down to the states. i'm a libertarian, i could care less what you do with the kids, just as long as i don't have to pay for it. i have never met or listen to anybody who is so ignorant on history as this guy is. all he is is a race baiter. he is just trying to raise issues. guest: have you actually read the constitution? have you read the part where it says well-regulated militia? the idea that i am here for your benefit to convince you is completely wrong. i don't care what you think. i am here to get other people who agree with me to understand how difficult our situation is, and what people like you are doing to the country. was there an actual question there? i'm sorry, i didn't actually hear a question that you had for me. if you look at the history of the second amendment, if you read books about the second amendment, if you read the speeches from the people who wanted the second amendment, you will see what i just said. host: shakira in brooklyn. democrat. good morning. caller: i enjoyed "allow me to retort." thank you for making information on the constitution so that adjustable. in the big affordable care act case, chief justice roberts decided not to strike down this law because of this idea of reliance, where americans had developed a reliance on what was available under the law. i was born with a womb. respectfully and humbly, as someone who has to live with this organ my entire life, it seems reasonable that people like me and similarly situated should be able to rely on access to that organ care throughout our lives. i wonder, did the court addressed this concept of reliance at all in the writings that came out in the opinions? guest: reliance is a huge reason to uphold precedent. the dissent, which was cowritten by breyer, sotomayor, kagan, talked about how the reliance interests were such, even if you didn't think roe v. wade was correctly decided in 1972, if you didn't think the 14th amendment especially protected the right to an abortion, that roe v. wade should still be upheld because of the reliance interest. that is what they said. republicans don't care. they just didn't care. there is no other way to put it. they don't care about your reliance interest, they don't care about what women are actually going through. they just want to do the power -- they want to do what they have the power to do. eric was saying that supreme court returned it to the state. the old states rights argument. that argument has been used to justify pretty much every atrocity done to nonwhite men in this country. that is how they justify slavery, segregation. that is how they justified bans on sodomy, ban on interracial marriages. it is always states rights. so i take a dim view on states rights. what we know from the constitution is that the white man who wrote it, the slavers and colonists who wrote it put in some carveouts, we call them rights that would supersede what the states wanted them to do. they put in the right to free speech, search and seizure. that is what abortion is, a right. i will acknowledge the people who wrote the constitution did not specifically say, a woman has the right to an abortion. but i will also point out that the people who wrote the constitution didn't think that a woman have the right to finish their sentences. these were exclusively white men who excluded white women from the -- excluded women from the conversation. it is not surprising that the rights they wrote down were important to them and not everybody else. luckily, they also brought on the ninth amendment who said they could not have thought of all the rights given to the people. host: president biden on friday referred to his determination to ensure the right to travel between states if somebody is seeking abortion access in another state. take us through the constitutional issues here. guest: one of the things the states that will do that will ban abortion, they will enact fugitive uterus acts. they will try to restrict the travel of women from their states to another state where abortion is legal and then back home. it will be very much like the 1850 fugitive slave act, that again, the white slavers and colonists passed. those acts should be illegal. there is a right to interstate commerce, a right to travel. you shouldn't be able to restrict travel from one state to another. if you do something in another state, your state does not have sovereignty over you. it is a what happens in vegas kind of thing. i cannot be prosecuted in new york for new york state crimes that i commit in las vegas. that is the idea. biden says he will protect that right. i don't yet know what that means. quite frankly, what it should mean, what the states are going to make it mean, is that women will need armed escorts to travel across states. at the very least, they will need travel vouchers to cross state lines. we all know that rich white women will be able to go where they need to go to get their abortions. that is a part of the subtext of this decision. we know that. we know the mistress of the rich white republican donor will be able to go to canada or belize or wherever she has to go to get an abortion. but it is poor women who will be most restricted from these laws. and it will be poor women who will have the least ability to travel to expensive states like illinois or new york or california to get services. if biden is serious about protecting a woman's right to travel, i would assume he is also serious about giving women vouchers and money to do that travel. but in addition to that, we will need some kind of protection for travel. another side point, we will need -- and the justice department has maybe indicated it is thinking about maybe doing -- we will need some protection of privacy. what the states will do is use apps, period tracking apps, pregnancy apps to try and prove that women are crossing state lines to have reproductive health services. we will need some kind of prosecutorial response against those laws. there is a lot that goes away now. there is a lot that gets dystopian and scary, and all of this has been brought to you by the republicans. host: one or two more calls. a reminder, we are expecting orders, decisions coming down from the supreme court. seven decisions left. we will certainly do through them tomorrow on this program. we begin every morning at 7:00 eastern, 4:00 a.m. pacific. this afternoon on c-span, and events on the overdose crisis in this country. president biden director of the national control policy will testify on the 2022 national drug strategy. you can watch that on c-span, c-span.org, c-span video app. chuck is waiting in georgia. he is an independent. go ahead. caller: 10 minutes ago, you said nothing had changed since 1972 when roe v. wade was passed. size has changed a lot since then. they have been able to determine things that we didn't know back then about the viability of a baby in the womb. that is why the majority of people now want to limit when you make an abortion. i think that is the correct thing. if a baby is viable, why would you want to kill it? i don't understand anyone thinking that wants to kill a viable baby. guest: that was the holding in roe. the holding in roe is that abortion would be legal up until fetal life -- viability. if you want to make a scientific argument, give me the journal of medicine that says fetal viability begins from 20x weeks from 20y weeks. maybe with the best sides of all we can get it down to 20 weeks. ok, i'm open to the conversation. i'm open to the holding in roe. but the holding in roe was that fetal viability was the line. that is the only thing that makes sense. if you are going to say that life begins at fertilization, which is not something that everyone agrees on, certainly while i cannot live outside the mother, the woman's body needs to have ultimate choice over what happens after fetal viability, when the fetus can live without the forced labor of the woman, that we can talk about legitimate state interest. the whole thing in roe was fetal viability. it is this conservative theocratic supreme court that change that to no. they went from fetal viability to the moment of conception. that is what dobbs did. if you think there should be so after fetal viability where abortion is restricted or illegal, guess what, that is the world we were living in until friday. host: i know that you'll have to turn around and focus on these new supreme court decisions that will be handed down. we will give you a minute before those start coming out. we do appreciate you coming on to the program, chatting with the viewers. ellie missed out, "allow me to retort." you we discussed policy issues that impact you. coming up tuesday morning, we discussed the supreme court decision including abortion and religious freedom. and also with talkshow host thom hartmann, author. watch washington journal, live at 7:00 eastern tuesday morning on c-span or on c-span now, our free mobile app. join the discussion with your phone call, facebook comment, text messages and tweets. the january 6 committee returns earlier than expected after today's announcement it would hold a public hearing on a new evidence tomorrow at 1:00 p.m. eastern watch on c-span, c-span now our free mobile app or anytime online at c-span.org. you can also visit our website c-span.org/january 6 to watch previous hearings and other videos related to that day. c-span your unfiltered view of government. next, a discussion on u.s. policy regarding countries that violate religious freedoms. the u.s. commission recommended the state department designate countries like china, afghanistan, pakistan, saudi arabia and nigeria and put them on the department special watch list. this is an hour. dwight: good afternoon and welcome everyone to the u.s. commissions briefing called the impact on international religious freedom.
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