Livestreaming is streaming media simultaneously recorded and broadcast in real-time over the Internet. It is often referred to simply as streaming. Non-live media such as video-on-demand, vlogs, and YouTube videos are technically streamed, but not live-streamed.
Livestream services encompass a wide variety of topics, from social media to video games to professional sports. Platforms such as Facebook Live, Periscope, Kuaishou, Douyu, bilibili and 17 include the streaming of scheduled promotions and celebrity events as well as streaming between users, as in videotelephony. Sites such as Twitch have become popular outlets for watching people play video games, such as in esports, Let's Play-style gaming, or speedrunning,
and is now broadening, with a category called "Just Chatting" usually
having the most viewers. Live coverage of sporting events is a common
application.
User interaction via chat rooms
forms a major component of livestreaming. Platforms often include the
ability to talk to the broadcaster or participate in conversations in
chat. Many chat rooms also consist of emotes which is another way to communicate to the livestreamer.
Social media
In the field of social media, the term "live media" refers to new media that use streaming media technologies for creating networks of live multimedia shared among people, companies and organizations. Social media marketer
Bryan Kramer describes livestreaming as an inexpensive "key marketing
and communications tool that helps brands reach their online audience."
Users can follow their friends' live video "shares" as well as "shares"
related to specific content or items. Live media can be shared through
any Internet website or application; thus, when people browse on a
specific website, they may find live media streams relevant to the
content they look for.
Facebook introduced a video streaming service, Facebook Watch to select individuals in August 2016, and to the public in January 2017.
Facebook watch is a video-on-demand service that allows users to share
content live. It allows people to upload videos that cover a wide array
of topics including original comedy, drama, and news programming.
Facebook Live allows Facebook users to include their own "reactions"
when someone is broadcasting. One of the reasons that Facebook Watch is
so successful is because the content is recommended to users based on
algorithms that determine what the user would most like to watch.
YouTube Live
YouTube was purchased by Google
in 2006, and the pair subsequently announced their livestreaming app.
Like Periscope, users can comment on the broadcast. Unlike Periscope,
livestreams on YouTube can be saved and any user can access them through
the app.
YouTube head of product for consumers Manuel Bronstein stated that
livestreaming gives creators the opportunity to "actually create a more
intimate connection with their fans."
Lifestreaming, or lifecasting, involves the continuous broadcasting of daily events in one's life. Justin Kan founded Justin.tv as a website for his own continuous lifecasting, and is credited with popularizing the style.
Twitch
Twitch is a livestreaming video platform owned by Twitch Interactive, a subsidiary of Amazon. Introduced in June 2011 as a spin-off of the general-interest streaming platform, Justin.tv, the site primarily focuses on video gamelivestreaming, including broadcasts of eSports competitions, in addition to music broadcasts, creative content, and more recently, "in real life" streams. Content on the site can be viewed either live or via video on demand.
Bigo Live
Bigo Live is a live streaming platform owned by a Singapore-based BIGO Technology, which was founded in 2014 by David Li and Jason Hu. As of 2019, BIGO Technology is owned by JOYY, a Chinese company listed on the NASDAQ. Like YouTube Live, users can watch trendy live streams and comment on
the broadcast. Unlike YouTube Live, users on Bigo Live can filter out
broadcasters from a certain country on the explore page.
Former
Periscope
In March 2015, Twitter launched a livestreaming app called Periscope. Normally, users would see a hyperlink
attached to their broadcast, directing people to a new tab. Using
Periscope, videos appear live on the timeline. If the user has allowed
the site to share information, others can see where the user is
streaming from. During the broadcast, users can comment, talk to the
broadcaster, or ask questions. Kayvon Beykpour, CEO of Periscope, and Dick Costolo and Jack Dorsey, CEOs of Twitter, all shared a common goal—to invent something that would merge both teams into one instead of as partners. It was discontinued in March 2021 due to declining usage, product realignment and high maintenance costs.
Mixer
Microsoft entered the livestreaming scene when it acquired Beam, the Seattle-based company, in August 2016. About a year after acquiring the company, the service was renamed to Mixer in May 2017. The platform was the first to bring multiple features to livestreaming
such as interactive gameplay, where viewers could influence gameplay,
and co-streaming, where viewers could watch multiple viewpoints of
teammates in the same game. Like Twitch, viewers on Mixer
could pay to subscribe to streamers on a monthly basis. Viewers could
also buy "Embers", which was the e-currency used by the site, and could
donate that to streamers as well. While Twitch remained the biggest company in the business, Mixer attempted to raise its stock by signing multiple big streamers to Mixer-exclusive deals. These signings included Tyler "Ninja" Blevins in August 2019, Michael "Shroud" Grzesiek in October of 2019, and Cory "King Gothalion" Michael also in October 2019.
Mixer announced it would be shutting down its streaming services on
July 22, 2020. In the announcement, Mixer's parent company, Microsoft,
announced a partnership with Facebook gaming, and directed current users
to the new platform.
Software
There
are live broadcast software on the market to facilitate Broadcast
deployment, replacing physical devices saving time and money, many of
these software use computer resources, other GPU resources, some more
professionals also offer dedicated devices, but all they are software
based.
The following comparative table offers more details of the features and complete functions of all the software on the market.
Livestreaming playing of video games gained popularity during the 2010s. David M. Ewalt referred to Twitch as "the ESPN of video games". The website spawned from and grew to overshadow Justin.tv, and was purchased by Amazon.com at the end of 2014 for US$970 million. Other video-game oriented streaming websites include Smashcast.tv, which was formed after the merging of Azubu and Hitbox.tv, and the South Korea-based afreecaTV. In 2015, YouTube launched YouTube Gaming—a video gaming-oriented sub-site and app that is intended to compete with Twitch.
An example of a notable livestreamed event is Games Done Quick, a charity speedrunning
marathon hosted on Twitch. Viewers are encouraged to donate for
incentives during the stream such as naming characters in a run, having
the runners attempt more difficult challenges, or winning prizes. Over $10 million has been raised across sixteen marathons.
Professional streamers can generate livable revenue from viewer subscriptions and donations, as well as platform advertisements and sponsorships from eSports organizations, often earning much more from streaming than from tournament winnings. The audiences of professional gaming tournaments are primarily livestream viewers in addition to live audiences inside venues. The International 2017, a Dota 2
tournament with the largest prize pool in eSport history, was primarily
streamed through Twitch, having a peak of over five million concurrent
viewers.
Metrics
With
livestreaming becoming a financially viable market, particularly for
esports, streamers and organizations representing them have looked for
metrics to quantify the viewership of streams as to be able to determine
pricing for advertisers. Metrics like maximum number of concurrent
viewers, or number of subscribers do not readily account for how long a
viewer may stay to watch a stream.
The most common metric is the "Average Minute Audience" (AMA), which is
obtained by taking the total minutes watched by all viewers on the
stream during the streamed event and for 24 hours afterwards, divided by
the number of minutes that were broadcast. The AMA is comparable to the
same metric that the Nielsen ratings
for tracking viewership. This also makes it possible to combine
standard broadcast and streaming routes for events that are simulcasted
on both forms of delivery to estimate total audience size Major events with reported AMA include streamed National Football League games; for example, the average AMA for NFL games in 2018 ranged from 240,000 to 500,000 across streaming services, with the following Super Bowl LIV having an AMA of 2.6 million. In comparison, the esports Overwatch League had an average of 313,000 average minute audience during regular season games in its 2019 season.
Many instances of serious crimes such as rape and assault, along with suicides,
have been streamed live, leaving little to no time for administrators
to remove the offending content. Livestreamed crimes and suicides became
a trend in the mid-2010s with widely reported incidents such as
assaults and suicide streamed. On December 30, 2016 a 12 year old named
Katelyn Nicole Davis known online by the username ITZ Dolly, hanged
herself from a tree in her back yard while live streaming the event to
Live.me after she claimed being neglected by her biological father
alongside being physically and sexually abused by her stepfather, the
video caused widespread outrage Davis is believed to be the youngest
person to live stream a suicide. and the kidnapping of a man in Chicago streamed through Facebook Live in 2017. A mass shooting in Jacksonville, Florida, resulting in the deaths of two in addition to the shooter, occurred during a Madden NFL 19 tournament. Part of the Christchurch mosque shootings was streamed on Facebook Live by the perpetrator for 17 minutes.
Additionally, livestreaming to large audiences carries the risk
that viewers may commit crimes both remotely and in person. Twitch
co-founder Justin Kan had been a frequent target of swatting. An incident occurred in April 2017 at the Phoenix Sky Harbor International Airport when a viewer called in a bomb threat and named streamer Ice Poseidon as the culprit, temporarily shutting down the airport. They may also be victim to stalking
as with other celebrities; for example, a teenager showed up uninvited
to a streamer's house and requested to live with him after having saved
up for a one-way transcontinental flight. A Taiwan-based American streamer fell victim to a doxing
and targeted harassment campaign by a Taiwanese streamer, coordinated
through a private Facebook group with 17,000 members "whose activities
involved tracking [his] whereabouts," death threats and "the
distribution of his parents’ U.S. phone number and address". Twitch
responded by temporarily suspending the harassed streamer.
Research
Live
content streaming has been the topic of numerous papers examining ways
to cultivate online communities through live interaction. The
livestreaming platform Twitch
is a common focus among researching trying to transfer its user
engagement success to other applications such as improving student
participation and learning in massive open online courses (MOOCs).
Humboldtian science refers to a movement in science in the 19th century closely connected to the work and writings of German scientist, naturalist and explorer Alexander von Humboldt.
It maintained a certain ethics of precision and observation, which
combined scientific field work with the sensitivity and aesthetic ideals
of the age of Romanticism. Like Romanticism in science, it was rather popular in the 19th century. The term was coined by Susan Faye Cannon in 1978.
The example of Humboldt's life and his writings allowed him to reach out
beyond the academic community with his natural history and address a
wider audience with popular science aspects. It has supplanted the older
Baconian method, related as well to a single person, Francis Bacon.
Humboldt was born in Berlin
in 1769 and worked as a Prussian mining official in the 1790s until
1797 when he quit and began collecting scientific knowledge and
equipment. His extensive wealth aided his infatuation with the spirit of Romanticism;
he amassed an extensive collection of scientific instruments and tools
as well as a sizeable library. In 1799 Humboldt, under the protection of
King Charles IV of Spain, left for South America and New Spain, toting all of his tools and books.
The purpose of the voyage was steeped in Romanticism; Humboldt intended
to investigate how the forces of nature interact with one another and
find out about the unity of nature. Humboldt returned to Europe in 1804
and was acclaimed as a public hero. The details and findings of
Humboldt's journey were published in his Personal Narrative of Travels to the Equatorial Regions of the New Continent (30 volumes). This Personal Narrative was taken by Charles Darwin on his famous voyage on H.M.S Beagle.
Humboldt spent the rest of his life mainly in Europe, although he did
embark on a short expedition to Siberia and the Russian steppes in 1829.
Humboldt's last works were contained in his book, Kosmos: Entwurf einer physischen Weltbeschreibung
("Cosmos. Sketch for a Physical Description of the Universe"). The book
mainly described the development of a life-force from the cosmos, but
also included the formation of stars from nebular clouds as well as the geography of planets. Alexander von Humboldt died in 1859, while working on the fifth volume of Kosmos.
Through his travels to South America and his observational records in An Essay on the Geography of Plants as well as Kosmos,
an important trend emerged through his techniques of observation,
scientific instruments used and unique perspective on nature. Humboldt's
novel style has been defined as Humboldtian Science. Humboldt had the
ability to combine the study of empirical data with a holistic view of
nature and its aesthetically pleasing characteristics, which is now held
to be the true definition of the study of vegetation and plant
geography. Humboldtian science is one of the first techniques for studying both organic and inorganic branches of science.
Examining the interconnectedness of vegetation and its respective
environment is one of the new and important aspects of Humboldt's work,
an idea labeled as "terrestrial physics," something that scientists who
preceded him, such as Linnaeus, failed to do. Humboldtian science is
founded on a principle of "general equilibrium of forces." General
equilibrium was the idea that there are infinite forces
in nature that are in constant conflict, yet all forces balance each
other out.
Humboldt laid the groundwork for future scientific endeavors by
establishing the importance of studying organisms and their environment
in conjunction .
Humboldtian science defined
Chimborazo Map, 1807
Humboldtian science includes both the extensive work of Alexander von
Humboldt, as well as many of the works of 19th century scientists. Susan Cannon is attributed with coining the term Humboldtian science.
According to Cannon, Humboldtian science is, "the accurate, measured
study of widespread but interconnected real phenomena in order to find a
definite law and a dynamical cause."
Humboldtian science is used now in place of the traditional,
"Baconianism," as a more appropriate and less vague term for the themes
of 19th century science.
Natural history in the eighteenth century was the "nomination of the visible". Carl Linnaeus
was preoccupied with fitting all nature into taxonomy, fixated on only
what was visible. Towards the turn of the eighteenth century, Immanuel
Kant became interested in understanding where species derived from, and
was less concerned with an organism's physical attributes. Next, Johann Reinhold Forster,
one of Humboldt's future partners, became interested in the study of
vegetation as an essential way of understanding nature and its
relationship with human society. Proceeding Forster, Karl Willdenow
examined floristic plant geography, the distribution of plants and
regionality as a whole. All of these pieces in the history before
Humboldt help to shape what is defined as Humboldtian science. Humboldt
took into account both the outward appearance and inward meaning of
plant species. His attention to natural aesthetics and empirical data
and evidence is what set his scientific work apart from ecologists
before him. Nicolson so aptly puts it as: "Humboldt effortlessly
combined a commitment to empiricism and the experimental elucidation of
the laws of nature with an equally strong commitment to holism and to a
view of nature which was intended to be aesthetically and spiritually
satisfactory".
It was through this holistic approach to science and the study of
nature that Humboldt was able to find a web of interconnectedness
despite a multitude of extensive differences between different species
of organisms.
According to Malcolm Nicholson, "Susan Cannon characterized
Humboldtian science as synthetic, empirical, quantitative and impossible
to fit into any one of our twentieth century disciplinary boundaries."
A central element of Humboldtian science was its use of the latest
advances in scientific instrumentation to observe and measure physical
variables, while attending to all possible sources of error. Humboldtian
science revolved around understanding the relationship between accurate
measurement, sources of error and mathematical laws. Cannon identifies four distinctive features that marked Humboldtian science out from previous versions of science:
insistence on accuracy for all scientific instruments and observations;
a mental sophistication in which theoretical mechanisms and entities of past science were taken lightly;
the application of accuracy, mental sophistication, and tools not to
isolated science in laboratories, but to greatly variable real
phenomena.
Humboldt's "terrestrial physicist"
Scientific travelers depicted on Humboldt's (and Caspar David Friedrich's) role model
Humboldt was committed to what he called 'terrestrial physics.'
Essentially Humboldt's new scientific approach required a new type of
scientist: Humboldtian science demanded a transition from the naturalist
to the physicist. Humboldt described how his idea of terrestrial
physics differs from traditional "descriptive" natural history when he
stated, "[traveling naturalists] have neglected to track the great and
constant laws of nature manifested in the rapid flux of phenomena…and to
trace the reciprocal interaction of the divided physical forces."
Humboldt did not consider himself an explorer, but rather a scientific
traveler, who accurately measured what explorers had reported
inaccurately.
According to Humboldt, the goal of the terrestrial physicist was to
investigate the confluence and interweaving of all physical forces. An
incredibly extensive array of precise instrumentation had to be readily
available for Humboldt's terrestrial physicist. The expansive amount of
scientific resources that characterized the Humboldtian scientist is
best described in the book Science in Culture,
Thus the complete Humboldtian traveller, in order to make
satisfactory observations, should be able to cope with everything from
the revolution of the satellites of Jupiter to the carelessness of
clumsy donkeys.
Just some of such instruments included chronometers, telescopes,
sextants, microscopes, magnetic compasses, thermometers, hygrometers,
barometers, electrometers, and eudiometers. Furthermore, it was
necessary to have multiple makes and models of each specific instrument
to compare errors and constancy among each type.
Humboldt's equilibrium
One
concept that is central to Humboldtian science is that of a general
equilibrium of forces. Humboldt explains: "The general equilibrium which
reigns amongst disturbances and apparent turmoil, is the result of
infinite number of mechanical forces and chemical attractions balancing
each other out."
Equilibrium is derived from an infinite number of forces acting
simultaneously and varying globally. In other words, the lawfulness of
nature, according to Humboldt, is a result of infinity and complexity.
Humboldtian science promotes the idea that the more forces that are
accurately measured over more of the earth's surface results in a
greater understanding of the order of nature.
The voyage to the Americas produced many discoveries and
developments that help to illustrate Humboldt's ideas about this
equilibrium of forces. Humboldt produced the Tableau physique des Andes
("Physical Profile of the Andes), which aimed at capturing his voyage
to the Americas in a single graphic table. Humboldt meant to capture all
of the physical forces, from organisms to electricity, in this single
table. Among many other complex empirical recordings of
elevation-specific data, the table included a detailed biodistribution. This biodistribution mapped the specific distributions of flora and fauna at every elevation level on the mountain.
Humboldt's study of plants provides an example of the movement of
Humboldtian science away from traditional science. Humboldt's botany
also further illustrates the concept of equilibrium and the Humboldtian
ideas of the interrelationship of nature's elements. Although he was
concerned with physical features of plants, he was largely focused on
the investigation of underlying connections and relations among plant
organisms.
Humboldt worked for years on developing an understanding of plant
distributions and geography. The link between the balancing equilibrium
of natural forces and organism distribution is evident when Humboldt
states:
As in all other phenomena of the physical universe, so in
the distribution of organic beings: amidst the apparent disorder which
seems to result from the influence of a multitude of local causes, the
unchanging law of nature become evident as soon as one surveys an
extensive territory, or uses a mass of facts in which the partial
disturbances compensate one another.
The study of vegetation and plant geography arose out of new concerns
that emerged with Humboldtian science. These new areas of concern in
science included integrative processes, invisible connections,
historical development, and natural wholes.
Humboldtian science applied the idea of general equilibrium of
forces to the continuities in the history of the generation of the
planet. Humboldt saw the history of the earth as a continuous global
distribution of such things as heat, vegetation, and rock formations. In
order to graphically represent this continuity Humboldt developed
isothermal lines.
These isothermal lines functioned in the general balancing of forces in
that isothermal lines preserved local peculiarities within a general
regularity.
According to Humboldtian science, nature's order and equilibrium
emerged "gradually and progressively from laborious observing,
averaging, and mapping over increasingly extended areas."
Transformation of Humboldtian science
Ralph Waldo Emerson
once dubbed Humboldt to be "one of those wonders of the world… who
appear from time to time, as if to show us the possibilities of the
human mind."
When Humboldt first began his studies of organisms and the
environment he claimed that he wanted to "reorganize the general
connections that link organic beings and to study the great harmonies of
Nature". He is often considered one of the world's first genuine ecologists.
Humboldt succeeded in developing a comprehensive science that joined
the separate branches of natural philosophy under a model of natural
order founded on the concept of dynamic equilibrium. Humboldt's work
reached far beyond his personal expeditions and discoveries. Figures
from all across the globe participated on his work. Some such
participants included French naval officers, East India Company physicians, Russian provincial administrators, Spanish military commanders, and German diplomats. As was mentioned previously, Charles Darwin carried a copy of Humboldt's Personal Narrative aboard H.M.S. Beagle.
Humboldt's projects, particularly those related to natural philosophy,
played a significant role in the influx of European money and travelers
to Spanish America in increasing numbers in the early 19th century. Sir Edward Sabine, a British scientist, worked on terrestrial magnetism in a manner that was certainly Humboldtian. Also, British scientist George Gabriel Stokes
depended heavily on abstract mathematical measurement to deal with
error in a precision instrument, certainly Humboldtian science. Maybe
the most prominent figure whose work can be considered representative of
Humboldtian science is geologist Charles Lyell. Despite a lack of emphasis on precise measurement in geology at the time, Lyell insisted on precision in a Humboldtian manner.
The promotion and development of terrestrial physics under
Humboldtian science produced not only useful maps and statistics, but
offered both European and Creole societies tools for essentially
're-imaging' America. The lasting impact of Humboldtian science is described in Cultures of Natural History,
"Humboldtian science illuminates the reorganization of knowledge and
disciplines in the early nineteenth century that defined the emergence
of natural history out of natural philosophy."
Judgment and injunction for plaintiffs, 686 F. Supp.1089 (E.D. Pa. 1988); injunction clarified, 736 F. Supp.633 (E.D. Pa. 1990); judgment and injunction granted for plaintiffs, 744 F. Supp.1323 (E.D. Pa. 1990) (regarding 1988 amendments to 1982 Act); affirmed in part and reversed in part, 947 F. 2d682 (3d Cir. 1991); certiorari granted, 502U.S. 1056 (1992)
Subsequent
Remanded, 978 F.2d74 (3d Cir. 1992); motion to disqualify judge denied, 812 F. Supp.541 (E.D. Pa. 1993); record reopened and injunctions continued, 822 F. Supp.227 (E.D. Pa. 1993); reversed and remanded, 14 F.3d848 (3d Cir. 1994); stay denied, 510U.S. 1309 (1994); attorney fees and costs awarded to plaintiffs, 869 F. Supp.1190 (E.D. Pa. 1994); affirmed, 60 F.3d816 (3d Cir. 1995)
Holding
A Pennsylvania law that required spousal awareness prior to obtaining an abortion was invalid under the Fourteenth Amendment
because it created an undue burden on married women seeking an
abortion. Requirements for parental consent, informed consent, and
24-hour waiting period were constitutionally valid regulations. Third
Circuit Court of Appeals affirmed in part and reversed in part.
The case arose from a challenge to five provisions of the
Pennsylvania Abortion Control Act of 1982; among the provisions were
requirements for a waiting period, spousal notice, and (for minors)
parental consent prior to undergoing an abortion procedure. In a
plurality opinion jointly written by associate justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, the Supreme Court upheld the "essential holding" of Roe, which was that the Due Process Clause of the Fourteenth Amendment protects a woman's right to choose to have an abortion prior to viability.
The Court overturned the Roetrimester
framework in favor of a viability analysis, thereby allowing states to
implement abortion restrictions that apply during the first trimester of
pregnancy. The Court also replaced the strict scrutinystandard of review required by Roe
with the undue burden standard, under which abortion restrictions would
be unconstitutional when they were enacted for "the purpose or effect
of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus." Applying this new standard of review,
the Court upheld four provisions of the Pennsylvania law, but
invalidated the requirement of spousal notification. Four justices wrote
or joined opinions arguing that Roe v. Wade should have been
struck down, while two justices wrote opinions favoring the preservation
of the higher standard of review for abortion restrictions.
In May 2022, Politico obtained a leaked initial draft majority opinion written by Justice Samuel Alito suggesting that the Supreme Court is poised to overturn Casey along with Roe in a pending final decision on Dobbs v. Jackson Women's Health Organization.
Background
In Casey, the plaintiffs challenged five provisions of the Pennsylvania Abortion Control Act of 1982 authored by Rep. Stephen F. Freind, arguing that the provisions were unconstitutional under Roe v. Wade. The Court in Roe was the first to establish abortion as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. The majority in Roe further held that women have a privacy interest protecting their right to abortion embedded in the Liberty Clause of the Fourteenth Amendment. The five provisions at issue in Casey are summarized below.
§ 3205 Informed Consent. A woman seeking abortion had to
give her informed consent prior to the procedure. The doctor had to
provide her with specific information at least 24 hours before the
procedure was to take place, including information about how the
abortion could be detrimental to her health and about the availability
of information about the fetus.
§ 3209 Spousal Notice. A woman seeking abortion had to sign a
statement declaring that she had notified her husband prior to
undergoing the procedure, unless certain exceptions applied.
§ 3206 Parental Consent. Minors had to get the informed
consent of at least one parent or guardian prior to the abortion
procedure. Alternatively, minors could seek judicial bypass in lieu of
consent.
§ 3203 "Medical Emergency" definition. Defining a medical emergency as
[t]hat condition, which, on the basis of the physician's
good faith clinical judgment, so complicates the medical condition of a
pregnant woman as to necessitate the immediate abortion of her pregnancy
to avert her death or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
§§ 3207(b), 3214(a), and 3214(f) Reporting Requirements. Certain reporting and record keeping mandates were imposed on facilities providing abortion services.
The case was a seminal one in the history of abortion decisions in
the United States. It was the first case to provide an opportunity to
overturn Roe since two liberalJustices, William J. Brennan, Jr. and Thurgood Marshall, had been replaced with the George H.W. Bush-appointed Justices David Souter and Clarence Thomas. Both were viewed, in comparison to their predecessors, as ostensible conservatives. This left the Court with eight Republican-appointed justices – six of whom had been appointed by Presidents Reagan or Bush, both of whom were well known for their opposition to Roe. Finally, the only remaining Democratic appointee – Justice Byron White – had been one of the two dissenters from the original Roe decision.
The
plaintiffs were five abortion clinics, a class of physicians who
provided abortion services, and one physician representing himself
independently. They filed suit in the U.S. District Court for the Eastern District of Pennsylvania to enjoin the state from enforcing the five provisions and have them declared
facially unconstitutional. The District Court, after a three-day bench
trial, held that all the provisions were unconstitutional and entered a
permanent injunction against Pennsylvania's enforcement of them.
Third Circuit Court of Appeals decision
The
Court of Appeals for the Third Circuit affirmed in part and reversed in
part, upholding all of the regulations except for the husband
notification requirement.
The Third Circuit concluded that the husband notification was unduly
burdensome because it potentially exposed married women to spousal
abuse, violence, and economic duress at the hands of their husbands. Then-Circuit Judge Samuel Alito
sat on that three-judge appellate panel and dissented from the court's
invalidation of that requirement. Thirty-one years later, as a Supreme
Court Justice, Alito wrote a first draft of the majority opinion in Dobbs v. Jackson Women's Health Organization. The opinion would overturn Roe v. Wade and Planned Parenthood v. Casey.
The Supreme Court's consideration
At
the conference of the Justices two days after oral argument, Souter
defied expectations, joining Justices Stevens, Blackmun, and Sandra Day O'Connor, who had all dissented three years earlier in Webster v. Reproductive Health Services with regard to that plurality's suggested reconsideration and narrowing of Roe. This resulted in a precarious five-Justice majority consisting of Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy,
and Clarence Thomas that favored upholding all five contested abortion
restrictions. However, Kennedy changed his mind shortly thereafter, and
joined with fellow Reagan-Bush justices O'Connor and Souter to write a
plurality opinion that would reaffirm Roe.
The Court's opinions
Except for the three opening sections of the O'Connor–Kennedy–Souter opinion, Casey was a divided judgment, as no other sections of any opinion were joined by a majority of justices.However, the plurality opinion jointly written by Justices Souter, O'Connor and Kennedy is recognized as the lead opinion with precedential weight because each of its parts was concurred with by at least two other Justices, albeit different ones for each part.
The O'Connor, Kennedy, and Souter plurality opinion
In the 1992 case of Planned Parenthood v. Casey, The authors of the plurality opinion abandoned Roe's
strict trimester framework but maintained its central holding that
women have a right to choose to have an abortion before viability. Roe had held that statutes regulating abortion must be subject to "strict scrutiny"—the traditional Supreme Court test for impositions upon fundamental Constitutional rights. Casey instead adopted the lower, undue burden standard for evaluating state abortion restrictions,
but re-emphasized the right to abortion as grounded in the general
sense of liberty and privacy protected under the constitution:
"Constitutional protection of the woman's decision to terminate her
pregnancy derives from the Due Process Clause of the Fourteenth Amendment.
It declares that no State shall "deprive any person of life, liberty,
or property, without due process of law." The controlling word in the
cases before us is 'liberty'."
The authors of the plurality opinion began by noting the U.S. government's previous challenges to Roe v. Wade:
Liberty finds no refuge in a jurisprudence of doubt. Yet
19 years after our holding that the Constitution protects a woman's
right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.
They added with respect to the liberty quoted above:
Our law affords constitutional protection to personal
decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child." Eisenstadt v. Baird,
supra, at 453 (emphasis in original). Our precedents "have respected
the private realm of family life which the state cannot enter." Prince v. Massachusetts,
321 U. S. 158, 166 (1944). These matters, involving the most intimate
and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by
the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.
Upholding the "essential holding" in Roe
Justices Anthony Kennedy, David Souter and Sandra O'Connor,
all appointed by Republican presidents, defied expectations and helped
craft the three-justice plurality opinion that refused to overturn Roe.
The plurality opinion stated that it was upholding what it called the "essential holding" of Roe.
The essential holding consists of three parts: (1) Women have the right
to choose to have an abortion prior to viability and to do so without
undue interference from the State; (2) the State can restrict the
abortion procedure post-viability, so long as the law contains
exceptions for pregnancies which endanger the woman's life or health;
and (3) the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the
fetus that may become a child. The plurality asserted that the fundamental right to abortion is grounded in the Due Process Clause of the Fourteenth Amendment, and the plurality reiterated what the Court had said in Eisenstadt v. Baird:
"[i]f the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child."
Stare decisis analysis
The plurality's opinion included a thorough discussion on the doctrine of stare decisis (respect of precedent), and provided a clear explanation for why the doctrine had to be applied in Casey with regards to Roe. The authors of the plurality opinion emphasized that stare decisis had to apply in Casey because the Roe
rule had not been proven intolerable; the rule had become subject "to a
kind of reliance that would lend a special hardship to the consequences
of overruling and add inequity to the cost of repudiation"; the law had
not developed in such a way around the rule that left the rule "no more
than a remnant of abandoned doctrine"; and the facts had not changed,
nor viewed differently, to "rob the old rule of significant application
or justification."
The plurality acknowledged that it was important for the Court to stand
by prior decisions, even those decisions some found unpopular, unless
there was a change in the fundamental reasoning underpinning the
previous decision. The authors of the plurality opinion, making a
special note of the precedential value of Roe v. Wade, and specifically how women's lives were changed by that decision, stated,
The sum of the precedential enquiry to this point shows
Roe's underpinnings unweakened in any way affecting its central holding.
While it has engendered disapproval, it has not been unworkable. An
entire generation has come of age free to assume Roe's concept of
liberty in defining the capacity of women to act in society, and to make
reproductive decisions; no erosion of principle going to liberty or
personal autonomy has left Roe's central holding a doctrinal remnant.
The authors of the plurality opinion also acknowledged the need for
predictability and consistency in judicial decision making. For example,
Where,
in the performance of its judicial duties, the Court decides a case in
such a way as to resolve the sort of intensely divisive controversy
reflected in Roe and those rare, comparable cases, its decision has a
dimension that the resolution of the normal case does not carry. It is
the dimension present whenever the Court's interpretation of the
Constitution calls the contending sides of a national controversy to end
their national division by accepting a common mandate rooted in the
Constitution."
The plurality went on to analyze past judgments refusing to apply the doctrine of stare decisis, such as Brown v. Board of Education.
There, the authors of the plurality opinion explained, society's
rejection of the "Separate but Equal" concept was a legitimate reason
for the Brown v. Board of Education court's rejection of the Plessy v. Ferguson doctrine. Emphasizing the lack of need to overrule the essential holding of Roe,
and the Court's need to not be seen as overruling a prior decision
merely because the individual members of the Court had changed, the
authors of the plurality opinion stated,
Because neither the factual underpinnings of Roe's
central holding nor our understanding of it has changed (and because no
other indication of weakened precedent has been shown), the Court could
not pretend to be reexamining the prior law with any justification
beyond a present doctrinal disposition to come out differently from the
Court of 1973.
The plurality further emphasized that the Court would lack legitimacy
if it frequently changed its Constitutional decisions, stating,
The Court must take care to speak and act in ways that
allow people to accept its decisions on the terms the Court claims for
them, as grounded truly in principle, not as compromises with social and
political pressures having, as such, no bearing on the principled
choices that the Court is obliged to make.
Since the O'Connor-Kennedy-Souter plurality overruled some portions of Roe v. Wade despite its emphasis on stare decisis, Chief Justice Rehnquist in dissent argued that this section was entirely obiter dicta.
All these opening sections were joined by Justices Blackmun and Stevens
for the majority. The remainder of the decision did not command a
majority, but at least two other Justices concurred in judgment on each
of the remaining points.
Viability of the fetus
Although upholding the "essential holding" in Roe,
and recognizing that women have some constitutional liberty to
terminate their pregnancies, the O'Connor–Kennedy–Souter plurality
overturned the Roe trimester framework in favor of a viability analysis. The Roe
trimester framework completely forbade states from regulating abortion
during the first trimester of pregnancy, permitted regulations designed
to protect a woman's health in the second trimester, and permitted
prohibitions on abortion during the third trimester (when the fetus
becomes viable) under the justification of fetal protection, and so long
as the life or health of the mother was not at risk.
The plurality found that continuing advancements in medical technology
had proven that a fetus could be considered viable at 23 or 24 weeks
rather than at the 28 weeks previously understood by the Court in Roe.
The plurality thus redrew the line of increasing state interest at
viability because of increasing medical accuracy about when fetus
viability takes place. Likewise, the authors of the plurality opinion
felt that fetus viability was "more workable" than the trimester
framework.
Under this new fetus viability framework, the plurality held that at the
point of viability and subsequent to viability, the state could promote
its interest in the "potentiality of human life" by regulating, or
possibly proscribing, abortion "except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health
of the mother."
Prior to fetus viability, the plurality held, the State can show
concern for fetal development, but it cannot pose an undue burden on a
woman's fundamental right to abortion. The plurality reasoned that the new pre- and post-viability line would still uphold the essential holding of Roe,
which recognized both the woman's constitutionally protected liberty,
and the State's "important and legitimate interest in potential life."
The undue burden standard
Justice Sandra Day O'Connor was one of the three authors of the "undue burden" standard that she first advocated for in earlier abortion rulings.
In replacing the trimester framework with the viability framework,
the plurality also replaced the strict scrutiny analysis under Roe, with the "undue burden" standard previously developed by O'Connor in her dissent in Akron v. Akron Center for Reproductive Health.
A legal restriction posing an undue burden is one that has "the purpose
or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus."
An undue burden is found even where a statute purports to further the
interest of potential life or another valid state interest, if it places
a substantial obstacle in the path of a woman's fundamental right to
choice. The Supreme Court in the 2016 case Whole Woman's Health v. Hellerstedt clarified exactly what the 'undue burden' test requires: "Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer." The Supreme Court further clarified in the 2020 June Medical Services, LLC v. Russo opinion written by Justice Stephen Breyer
with respect to the undue burden standard: "[T]his standard requires
courts independently to review the legislative findings upon which an
abortion-related statute rests and to weigh the law's "asserted benefits
against the burdens" it imposes on abortion access. 579 U.S., at
___(slip op., at 21) (citing Gonzales v. Carhart, 550 U. S. 124, 165 (2007))." In Whole Woman's Health v. Hellerstedt the court described the undue burden standard in its overall context with these words:
We begin with the standard, as described in Casey.
We recognize that the "State has a legitimate interest in seeing to it
that abortion, like any other medical procedure, is performed under
circumstances that insure maximum safety for the patient." Roe v. Wade,
410 U. S. 113, 150 (1973). But, we added, "a statute which, while
furthering [a] valid state interest, has the effect of placing a
substantial obstacle in the path of a woman's choice cannot be
considered a permissible means of serving its legitimate ends." Casey,
505 U. S., at 877 (plurality opinion). Moreover, "[u]nnecessary health
regulations that have the purpose or effect of presenting a substantial
obstacle to a woman seeking an abortion impose an undue burden on the
right." Id., at 878.
Applying this new standard to the challenged Pennsylvania Act,
the plurality struck down the spousal notice requirement, finding that
for many women, the statutory provision would impose a substantial
obstacle in their path to receive an abortion.
The plurality recognized that the provision gave too much power to
husbands over their wives ("a spousal notice requirement enables the
husband to wield an effective veto over his wife's decision"), and could
worsen situations of spousal and child abuse.
In finding the provision unconstitutional, the authors of the plurality
opinion clarified that the focus of the undue burden test is on the
group "for whom the law is a restriction, not the group for whom the law
is irrelevant."
Otherwise stated, courts should not focus on what portion of the
population is affected by the legislation, but rather on the population
the law would restrict.
The plurality upheld the remaining contested regulations – the State's
informed consent and 24-hour waiting period, parental consent
requirements, reporting requirements, and the "medical emergencies"
definition – holding that none constituted an undue burden.
Notably, when the authors of the plurality discuss the right to
privacy in the joint opinion, it is all within the context of a
quotation or paraphrase from Roe or other previous cases. The
authors of the plurality opinion do not, however, explicitly or
implicitly state that they do not believe in a right to privacy, or that
they do not support the use of privacy in Roe to justify the
fundamental right to abortion. Justice Blackmun would not agree with an
implication asserting otherwise, stating "[t]he Court today reaffirms
the long recognized rights of privacy and bodily integrity."
Key judgment
Chief Justice John Roberts's concurrence in the 2020 June Medical Services, LLC v. Russo case noted the key outcomes in Casey:
"The several restrictions that did not impose a substantial obstacle
were constitutional, while the restriction that did impose a substantial
obstacle was unconstitutional."
Before an abortion regulation can be struck down as unconstitutional
there must be a determination that this regulation imposes a substantial
obstacle in light of the undue burden standard explained in the section above. In Casey
"the justices imposed a new standard to determine the validity of laws
restricting abortions. The new standard asks whether a state abortion
regulation has the purpose or effect of imposing an "undue burden",
which is defined as a "substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability." The key judgment of Casey can be summed up as follows: "Under Casey,
abortion regulations are valid so long as they do not pose a
substantial obstacle and meet the threshold requirement of being
"reasonably related" to a "legitimate purpose." Id., at 878; id., at 882 (joint opinion)."
The concurrence/dissents
Justices
Harry Blackmun and John Paul Stevens, who both joined the plurality in
part, also each filed opinions concurring in the Court's judgment in
part and dissenting in part. Chief Justice William Rehnquist filed an
opinion concurring in the Court's judgment in part and dissenting in
part, which was joined by Justices Byron White, Antonin Scalia, and
Clarence Thomas, none of whom joined any part of the plurality. Justice
Scalia also filed an opinion concurring in the judgment in part and
dissenting in part, which was also joined by Rehnquist, White, and
Thomas.
Rehnquist and Scalia, joined by White and Thomas
Chief Justice William Rehnquist was the senior justice of the four that dissented against the upholding of Roe.
Rehnquist and Scalia each joined the plurality in upholding the
parental consent, informed consent, and waiting period laws. However,
they dissented from the plurality's decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe
was incorrectly decided. In his opinion, Chief Justice Rehnquist
questioned the fundamental right to an abortion, the "right to privacy",
and the strict scrutiny application in Roe.
He also questioned the new "undue burden" analysis under the plurality
opinion, instead deciding that the proper analysis for the regulation of
abortions was rational-basis.
In his opinion, Justice Scalia also argued for a rational-basis
approach, finding that the Pennsylvania statute in its entirety was
constitutional. He argued that abortion was not a "protected" liberty, and as such, the abortion liberty could be intruded upon by the State.
To this end, Justice Scalia concluded this was so because an abortion
right was not in the Constitution, and "longstanding traditions of
American society" have allowed abortion to be legally proscribed.
Rehnquist and Scalia joined each other's concurrence/dissents. White
and Thomas, who did not write their own opinions, joined in both.
Stevens and Blackmun
Justice Harry Blackmun, the original author of Roe, would have struck down all of the Pennsylvania abortion restrictions, continuing to apply strict scrutiny.
Justices Blackmun and Stevens wrote opinions in which they approved of the plurality's preservation of Roe
and rejection of the spousal notification law. They did not, however,
agree with the plurality's decision to uphold the other three laws at
issue.
Justice Stevens concurred in part and dissented in part. Justice Stevens joined the plurality's preservation of Roe
and rejection of the spousal notification law, but under his
interpretation of the undue burden standard ("[a] burden may be 'undue'
either because the burden is too severe or because it lacks a legitimate
rational justification"), he would have found the information
requirements in §§ 3205(a)(2)(i)–(iii) and § 3205(a)(1)(ii), and the
24-hour waiting period in §§ 3205(a)(1)–(2) unconstitutional. Instead of applying an undue burden analysis, Justice Stevens would have preferred to apply the analyses in Akron and Thornburgh, two cases that had applied a strict scrutiny analysis, to reach the same conclusions.
Justice Stevens also placed great emphasis on the fact that women had a
right to bodily integrity, and a constitutionally protected liberty
interest to decide matters of the "highest privacy and the most personal
nature."
As such, Justice Stevens felt that a State should not be permitted to
attempt to "persuade the woman to choose childbirth over abortion"; he
felt this was too coercive and violated the woman's decisional autonomy.
Justice Blackmun concurred in part, concurred in the judgment in
part, and dissented in part. He joined the plurality's preservation of Roe – of which he wrote the majority – and he, too, rejected the spousal notification law. Justice Blackmun, however, argued for a woman's right to privacy and insisted, as he did in Roe, that all non-de-minimis abortion regulations were subject to strict scrutiny.
Using such an analysis, Justice Blackmun argued that the content-based
counseling, the 24-hour waiting period, informed parental consent, and
the reporting regulations were unconstitutional.
He also dissented from the plurality's undue burden test, and instead
found his trimester framework "administrable" and "far less
manipulable". Blackmun even went further in his opinion than Stevens, sharply attacking and criticizing the anti-Roe bloc of the Court.
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