1312
Opinion in Chambers
I note that I am not as certain as the Court of Appeals was that the District Court here has defied the terms of our remand in a manner that justifies comparison to Aaron v. Cooper, 163 F. Supp. 13 (ED Ark.), rev'd, 257 F. 2d 33 (CA8), aff'd, Cooper v. Aaron, 358 U. S. 1 (1958). The letter of our Casey opinion is not entirely hard edged. We remanded for "proceedings consistent with this opinion, including consideration of the question of severability," 505 U. S., at 901, thereby allowing for the possibility (as applicants strenuously argue) that there might be something for the courts below to determine beyond the severability from the body of the statute of the provisions held constitutionally invalid.5 More than once, we phrased our conclusion that particular provisions withstood facial challenge under the Due Process Clause in terms of "the record" before us in the case, see id., at 884, 887, 901; see also id., at 926 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part) (suggesting that evidence could be adduced "in the future" that would establish the invalidity of the provisions and arguing that the joint opinion did not "rul[e] out [that] possibility").
The Court of Appeals's construction of the opinion and mandate, however, is the correct one. Although we acknowledged in Casey that the precise formulation of the standard for assessing constitutionality of abortion regulation was, in some respects, novel, see 505 U. S., at 876- 877; see also 14 F. 3d, at 853-854 (acknowledging that Court had modified the Third Circuit's "undue burden" test), we did not remand the case to the lower courts for application of the proper standard, as is sometimes appropriate when a new legal standard is announced, see, e. g., Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). Instead,
5 After the Court of Appeals had held that the invalid provisions could be severed from the rest of the statute, see 978 F. 2d 74 (CA3 1992), that court itself remanded to the District Court for "such further proceedings as may be appropriate," id., at 78.
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