The Briefing 06-29-17

Part I

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The politics of abortion: 25 years ago today, SCOTUS handed down the infamous Casey decision

Today, we observe the quarter-century mark of one the most important decisions handed down by the United States Supreme Court on the question of the sanctity of human life and abortion. The shorthand name for the decision is Casey. It was the greatest opportunity since the Roe v. Wade decision legalizing abortion in 1973 for the Court to reverse the very deadly logic of Roe, but to make the long story short, the court did not do that. The story of how and why it did not do that is very important. The story emerges from the state of Pennsylvania, where the government there, the state government, had enacted restrictions on abortion that represented a direct challenge to Roe.

The case, we should note, afforded the Supreme Court the greatest opportunity since Roe at that point just almost 20 years earlier to reverse course and stand for the sanctity of human life. But the Court did not do that. What it did was important, but it did not reverse Roe. And as you’re looking at the history of abortion law in the United States, Casey was not only the greatest missed opportunity to overrule Roe, it also establish something that has been important since then. And that is the case decided the right of the states to enact restrictions on Roe that did not in the language of the Casey decision represent an “undue burden” upon women who might be seeking an abortion. Almost all of the abortion cases that have appeared at the Supreme Court since then go back to Casey with arguments as to whether or not restrictions undertaken by the states do represent this undue burden.

But why is the case so important? It’s important because it was the great opportunity to reverse Roe and the Supreme Court at that point was even expected to do so. Why? Because there had been presidents who had been appointing justices who held to a strict constructionist or to a textualist understanding of the Constitution and thus understood that Roe was wrongly decided, not only in terms of its horrifying and deadly effects, but in terms of its legal reasoning. And the preponderance of those who had been appointed as strict constructionists had given hope that the Roe decision would be overturned.

The oral arguments for the case were held on April 22, 1992. I had the honor of being at the Supreme Court and observing the oral arguments as they were held. When those arguments were presented, once again there was a good expectation that Roe would be reversed. But when the decision was handed down on June 29 of 1992, that was not the case. And the reason was because of a switch. And the switch was on the part of Justice Anthony Kennedy. Appointed to the Supreme Court by President Ronald Reagan, Anthony Kennedy had been understood to be himself a strict constructionist—that is holding to the fact that the Constitution is to be interpreted in terms of its words, the statutory and constitutional language would be determinative. If that position is taken, it’s clear there is no pretense of a woman’s supposedly constitutional right to an abortion. But somewhere between when he was appointed to the Supreme Court, when he put on those robes, and when the Casey decision was decided, Anthony Kennedy switched sides.

Lamentably since that year 1992, we have not seen the Court take up the case in which Roe was so much at the center of the question. Instead, we have had almost endless cases come before the federal courts, some of them arriving at the Supreme Court, where the primary question goes back not to Roe but to Casey as to whether or not state restrictions represent that kind of undue burden on abortion. That missed opportunity is not to be neglected in terms of our historical understanding, and of course that underlines the importance of every single nomination to the United States Supreme Court. In a chastening way, it is a reminder that the jurisprudence of a judge prior to being appointed to the Supreme Court is not always a reliable indicator of how that Justice will rule once he or she is seated on the nation’s highest court.

But the case is also an enduring affirmation of the fact that though the Supreme Court thought it had settled the abortion question in 1973, actually it set loose a cultural conflict often described as a culture war that it has been unable to end thereafter. Even as we began this week with big news Monday from the Supreme Court, this story underlines the fact that we have to remember the enduring importance of this third branch of America’s constitutional system of government. And with the 25^th anniversary of the Casey decision coming even today, we need to remind ourselves that these decisions often matter a very great deal. And furthermore, they can often matter for a very long time.

Part II

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Supreme Court Justice Anthony Kennedy has played an outsize role in America's culture wars

Secondly, this takes us to another story also related to Justice Kennedy and to the very decision we just discussed. But in this case we’re looking not just to the Court, nor at the question of abortion, but at the continuation of America’s great worldview and cultural moral conflict with Justice Anthony Kennedy at the very center. Writing this week in the Wall Street Journal, William McGurn at the main street column identifies Anthony Kennedy as a major reason for the culture war and Justice Kennedy as a culture warrior. He writes,

“So Anthony Kennedy is apparently sticking around. For a while Democrats who have lost the House, lost the Senate and lost the White House were having conniptions over the thought they might soon lose what Justice Antonin Scalia once described as their “super-legislative” power: the Supreme Court. At the Washington Post Ruth Marcus,”

He reminds us,

“called the prospect of Justice Kennedy’s retirement “terrifying and terrible.” Because notwithstanding his many sound opinions,”

McGurn writes,

“—this is the same justice who gave us Citizens United, upholding First Amendment speech rights—on the court he nevertheless plays an indispensable role for American progressives: culture warrior.”

McGurn gets it exactly right when he says on issues best fitted for federalist solutions such as abortion and marriage, Justice Kennedy has proved himself a reliable voice for the animating impulse of modern American progressivism. This is the idea that the American people cannot be trusted to decide certain issues and so must yield, as he once put it, to “the enhanced understanding” of unelected justices such as himself.

Remember that term “the enhanced understanding.” Here you have a Justice of the United States Supreme Court who in his own language holds himself to be morally and intellectually superior to the people of the United States. McGurn accurately observes,

“It started, of course, with abortion. One does not have to be pro-life to recognize that the reasoning of Roe v. Wade was absurd. In fact,” McGurn writes, “in 1992 in Planned Parenthood v. Casey, the court more or less confirmed this recognition when it upheld the outcome of Roe while substituting an entirely new rationale for it.”

He goes on to say,

“In that case Justice Kennedy was at first a vote to reject what had been an egregious and unconstitutional power grab. But somewhere along the way he flipped. In the end, he would be the deciding vote in a plurality decision,” let’s just insert here a 5-4 decision, “that called on ‘contending sides of [this] national controversy to end their national division by accepting a common mandate.’”

A mandate that came from five Justices of the United States Supreme Court. I was reminded at this point as McGurn was reminded of the dissent in the Casey decision offered by—and you’re anticipating who this is—the late Justice Antonin Scalia. Scalia wrote,

“By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

And in that Justice Scalia was not only correct, he was downright prophetic. Because the Casey decision, following on Roe, exactly as McGurn observes here, eviscerating Roe’s legal argumentation, but continuing the result by judicial fiat, the Court did prolong and intensify the nation’s anguish. So for reasons that go far beyond just one Supreme Court decision, this 25^th anniversary and the critical role played by the flipping Justice Anthony Kennedy should remind us of the continuing issues that we confront and the continuing challenge faced by those who would contend for the sanctity and dignity of every single human life, including the unborn.

Part III

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Planned Parenthood's Cecile Richards thinks she can change America's conscience on abortion. Will she?

And next, speaking of that battle, a really important statement made by one of the leading warriors in that battle on the other side, Cecile Richards, who is the head of the group known as Planned Parenthood. Emma Green reporting for The Atlantic tells us,

“The United States Congress is trying hard to defund Planned Parenthood, once and for all. For a period of one year, the proposed American Health Care Act would prohibit federal funds from going to non-profit organizations that provide family-planning services, including abortions, and get more than $350 million in reimbursements under Medicaid, which provides health insurance to the poor, the elderly, children, pregnant women, and people with disabilities.”

Then this sentence,

“When the Congressional Budget Office evaluated this clause of the bill, it “identified only one organization that would be affected: Planned Parenthood Federation of America and its affiliates and clinics.”

So as you might say, the battle is joined. Emma Green observes,

“If this bill goes through, it would represent an existential threat for Planned Parenthood.”

She goes on to say,

“Cecile Richards, the organization’s president, will have no such thing.”

Richards said,

“The minute we begin to edge back from that is the minute that they’ve won.”

Green tells us that she said this during an interview at the Aspen Ideas Festival in Colorado this past Monday. Green then says,

“Despite the renewed push in Washington to stop the organization from getting government funding, Richards believes Planned Parenthood can win the culture wars and make abortion widely acceptable in America.”

Richards said in the interview,

“We’ve got to quit apologizing or hiding.”

Now just reflect upon the fact that several weeks ago, the Trump Administration offered a public deal to Planned Parenthood: drop or at least separate your abortion business from everything else done in the clinics and there would be no effort to defund the rest of what’s done in terms of healthcare. But you’ll note and remember that Planned Parenthood decidedly, almost instantaneously, rejected the offer. That indicates just how almost monomaniacally committed to abortion Planned Parenthood actually is. And that reflects on the worldview that animates and drives the organization, and let’s just observe has done so ever since it was founded by Margaret Sanger back in the early decades of the 20^th century.

But this particular article, going back to this interview that Cecile Richards gave just this week at the Aspen Ideas Festival, tells us that the ambitions of Planned Parenthood go far beyond merely maintaining its federal funding. And we’re talking there about half $1 billion a year. Instead, Cecile Richards indicates that their actual goal is to shift the conscience of America on the question of abortion to make support for abortion the hallmark of the culture and to make opposition to abortion either disappear or become politically inconsequential.

Now remember, we’ve talked about the fact that the Roe v. Wade decision in 1973 actually became the major catalyst for the development of the culture wars as they are known in America. And just as William McGurn said in our last story, that was because the Court arrogated to itself to settle the issue of abortion decidedly on the basis of abortion rights, taking the right of the people state-by-state away and instead imposing the moral verdict made by judges. And that was repeated, as we saw, in the Casey decision as joined by Justice Kennedy. But now you have an amplification of the story. You have the very next step taken when you have the United States Senate considering legislation that would defund Planned Parenthood because of abortion and Cecile Richards fighting back to say we are not only going to end or even just separate our abortion business from the rest of what we do, we are going to in your face make abortion popular, morally acceptable in the United States of America.

In the interview Richards went on to say that her efforts will be to win the culture wars and to end “the stigma of abortion.”

Richards said, and I quote,

“It’s more important than ever that we stand loud and proud for the ability of any woman—regardless of her income, her geography, her immigration status, her sexuality, her sexual orientation—to access the full range of reproductive health care. We’ve got to pull the curtains back,” she said, “and be open and honest about this procedure that one in three women will have at some point in their lifetime, and their right to make that decision.”

She also celebrated the fact that so many in the mainstream entertainment culture are now offering support to this effort to end the stigma of abortion. She said,

“I’ll shout out Teen Vogue and Cosmo and Glamour—women’s magazines that are putting abortion stories into their magazines. That’s never happened before.”

She also celebrated pro-abortion messaging coming in contemporary television and movies. Emma Green says that Cecile Richards’s answer to the challenge is to commit even greater to abortion, “to stop ‘hiding,’ de-stigmatize it, and most of all, keep performing the procedure.”

Looking closer at Cecile Richards’ statements, it’s also clear that in winning the culture wars she not only is intent upon preserving the half-billion dollars of federal taxpayer money that goes to Planned Parenthood, she is also determined to remove all limitations in terms of taxpayer payment for those abortions. That’s her reference to the fact that abortion should be readily available to every woman without regard to her financial status.

It’s humbling but important for us to recognize that this many years after Roe v. Wade, a quarter-century after the Casey decision, groups such as Planned Parenthood are not only continuing the work of abortion, they are intent upon expanding it. And furthermore, they recognize the moral conflict in this nation and they see themselves as on the winning side. Cecile Richards announced just this Monday at the Aspen Ideas Festival that she not only intends to keep fighting the culture wars, she is quite certain she will win them.

Part IV

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Church of CrossFit? Why gyms and other secular communities are replacing church for many today

Next we shift to a story that reminds us just how religious human beings are. Every single human being in his or her own way will be a religious individual. That religious impulse will show in one way or another. It might be disguised even in the most secular person as some kind of worldview or affinity for spirituality, but religious, well, that marks every single human being. Christians understand why. It’s because God made us in his image, and that means we cannot not think in terms of theistic questions. We cannot not think in terms of spiritual questions. Why are we talking about this today? Because of the headline that recently also appeared in the Atlantic, the headline,

“The Church of CrossFit.”

The subhead,

“Gyms and other secular communities are starting to fill spiritual and social needs for many nonreligious people.”

The article’s by Julie Beck. At this point, my contention in terms of that subhead is that they are referring to the fact that CrossFit is becoming church for those who are not religious. But actually it just shows a different way of being religious. The story by Julie Beck begins by citing Casper ter Kuile, “a ministry innovation fellow at Harvard Divinity School.”

Ter Kuile said,

“You always know if someone goes to Harvard or if they go to CrossFit—they’ll tell you. It’s really interesting that evangelical zeal they have. They want to recruit you.”

Julie Beck then says,

“CrossFit is his favorite example of a trend he has noticed: how, in the midst of the decline of religious affiliation in America, and the rise of isolation and loneliness, many ostensibly non-religious communities are ‘functioning in ways that look a little bit religious.’”

Once again, these statements were made at the Aspen Ideas Festival. Ter Kuile was speaking Friday of last week at an event in which he said,

“People’s behavior and practice is really being unbundled from the institutions and Identities that would have been homes for it. [For example], ‘I was raised Catholic but yoga is really the practice where I find my experience of contemplation.’ As institutional affiliation decreases,” we are told, “people have the same age-old desires for connection, relationships, connection to something bigger than themselves.”

Now you’ll notice here that ter Kuile acknowledges that these are persons who might just be involved in something that looks a little bit religious. Actually, he underplays his hand. A closer look indicates they’re acting a lot religious. Ter Kuile, writing in a major research paper entitled “How We Gather,” says,

“Strikingly, spaces traditionally meant for exercise have become the locations of shared, transformative experience.”

“These are not places,” the Atlantic tells us, “where you go run on a treadmill with your headphones blasting Carly Rae Jepsen and make as little eye contact as possible with the people around you. They are inherently communal. With CrossFit,” we are told, “that community includes accountability for your actions, something,” ter Kuile says is also included in religion.

Ter Kuile’s words are these,

“The two most striking things about CrossFitters are their evangelical enthusiasm and the way they hold one another to account. … CrossFit expects members to call each other out if they don’t appear at their usual time and let each other know if they’re out of town.”

Now if that sounds a little bit like church discipline, well, you can just define it as religious CrossFit discipline. Julie Beck then continues,

“Gyms are places of physical transformation, so in some ways it makes sense that these companies are trying to foster mental and spiritual transformations, too. And for some people at least, it seems like they’re becoming loci of social support, much in the way a church might be.”

In a brilliant paragraph, Beck goes on to write,

“And the evangelical element is baked into CrossFit as well; it’s not just a result of members’ enthusiasm. If someone wants to become a CrossFit affiliate gym owner,” she writes. Something I had no idea about, “part of their application is an essay saying ‘what CrossFit affiliation means to you, why you want it, and what you want to achieve.’”

Ter Kuile says that the purpose of the essay is basically to answer the question,

“Has CrossFit changed your life and how do you want to change people’s lives with CrossFit?”

At this point we simply need to interject that there’s no reason why a Christian committed to the Christian worldview should not be involved in CrossFit. But that very Christian will understand that CrossFit is no substitute for the church.

When I saw this article in the Atlantic appearing just this week, I remembered an article on the very same subject that appeared almost 2 years ago on November 27 of 2015 by veteran religion reporter Mark Oppenheimer for the New York Times. The headline in that story,

“When Some Turn to Church, Others Go to CrossFit.”

And interestingly enough, when I looked at this article the very same individual, Casper ter Kuile, is cited as the authority. Oppenheimer back then almost 2 years ago recognized that CrossFit was becoming a substitute religion and CrossFit centers were becoming substitute churches for some secular Americans. He then asked some very interesting questions,

“Any criteria you choose to define religion will quickly reveal its shortcomings. Is it about belief in a deity? Judaism and Christianity have that, but many varieties of Buddhism do not. Existence after death? Mormons believe in that, but plenty of liberal Protestants do not.

He goes on to say that some people back in the last half-century had looked at the question of football and to whether or not football had become something of a national religion. But he says in looking at CrossFit, it takes this pattern a good deal further along the equation because it actually involves a spirituality that brings persons together and the discipline that is undertaken in terms of CrossFit. In asking whether or not it is religious, Oppenheimer turned to Joseph L. Price, who teaches religion and popular culture at Whittier College in California. He said, very interestingly and important for our consideration, and I quote,

“the key criterion is whether a given activity establishes a worldview.”

In his judgment, it just might be that CrossFit for many people—especially secular people looking for a substitute spirituality—CrossFit might actually provide a worldview. Professor Price said,

“To what extent is the worldview of the CrossFitters determined by their practices, their aspirations for the perfect body, or for the most fit male or female in the world?”

Professor Price went on to say,

“Does their aspiration for fitness shape their view of how their world is ordered and organized?”

Understood rightly, so many of these headline simply help us to understand that what we already know from Scripture is simply demonstrated and reinforced again and again in the news of the day, even in a story like this, telling us that for many people CrossFit has become the new church. Christians understand in this story a powerful affirmation of the fact that even the most secular person as it turns out is religious. But some of these very religious, secular people, we might say, are healthier than others.