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 thou