dissenting.
I respectfully dissent. I beliéve the district court erred in applying the Salerno facial challenge test. I would hold that the proper standard for determining the constitutionality of the North Dakota statutory provisions is the undue burden standard set forth in Justice O’Connor’s plurality decision in Casey, — U.S. at -, 112 S.Ct. at 2830, and reiterated by Justice O’Connor in her April 2, 1993, concurrence with the Supreme Court’s denial in the present case of the Organization’s motion for a stay pending appeal. Fargo Women’s Health Org., — U.S. at -, 113 S.Ct. at 1669 (“[A] law restricting abortions constitutes an undue burden, and hence is invalid, if, ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.’ ’’j.1 Accord Casey v. Planned Parenthood, 14 F.3d 848, at 863 n. 21 (3d Cir.1994) (opinion on remand) (Supreme Court’s decision in Casey set a new standard for facial challenges to pre-viability abortion laws; Casey replaced “old rule” of Salerno with new rule requiring the plaintiff to show abortion regulation would be an undue burden in a large fraction of cases). Accordingly, I would remand this case to the district court with instructions that the district court hold an evidentiary hearing and make factual findings as to whether the North Dakota provisions in question create such an undue burden. See Fargo Women’s Health Org., — U.S. at -, 113 S.Ct. at 1669 (O’Connor, J., concurring) (lower courts should have undertaken undue burden analysis as to the particular provisions at issue in this case). I would also grant the Organization’s request for an injunction pending the district court’s ruling on the merits.
APPENDIX
Submitted: March 16, 1993
Filed: March 30, 1993
Before McMILLIAN, JOHN R. GIBSON, and WOLLMAN, Circuit Judges. JOHN R. GIBSON, Circuit Judge.The Fargo Women’s Health Organization and individuals associated with it seek this emergency temporary stay and injunction pending their appeal of the district court’s order granting summary judgment against them and dismissing their claim. The Organization brought this action challenging the facial validity of the North Dakota Abortion Control Act, N.D.Cent.Code § 14-02.1, amended by 1991 N.D.Laws ch. 141 (effective April 1, 1991). The Organization specifically challenges the Act’s informed consent requirements and its definitions of “medical emergency” and “abortion.” The district court concluded that Planned Parenthood v. *537Casey, — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), required it to hold that the statute was facially constitutional. The court then vacated its order suspending enforcement of the Act and denied the Organization’s motion for stay and injunction pending appeal. The Organization then filed the motion now before us. Immediately following the argument, we extended Judge McMil-lian’s temporary stay until such time as a reasoned opinion could be filed. We have expedited this appeal, and now vacate the temporary stay.
After North Dakota amended its Abortion Control Act in 1991, the Organization brought this action challenging two provisions of the Act carried over from the preexisting code, specifically the definition of “abortion” and the general penalty provision.1 See N.D.Cent.Code §§ 14-02.1-02.1, 14-02.1-11. The Organization also challenges subsections in the 1991 amendments defining “medical emergency” and requiring a physician, except in medical emergencies, to obtain “informed consent” before performing an abortion.2 See §§ 14-02.1-02(7), 14-02.1-03(1).
The parties agreed that the case should be held in abeyance until the Casey opinion was filed because of the similarity between the Act and the Pennsylvania statute under examination in Casey. The district court granted a preliminary injunction on August 23,1991 with respect to the twenty-four hour waiting period and informed consent provisions. After Casey was decided, the court considered further briefing and argument and, on February 19, 1993, vacated the injunction and granted the State’s motion for summary judgment dismissing the complaint. See Fargo Women’s Health Org. v. Sinner, 819 F.Supp. 862 (D.N.D.1993).
The district court held, relying on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), and Rust v. Sullivan, 500 U.S. 173, 182-84, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991), that a successful facial challenge requires a showing that no set of circumstances exists under which a statute would be constitutionally valid. 819 F.Supp. at 864-65. Merely demonstrating that the Act might operate unconsti- • tutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. Id. The court thus rejected the Organization’s challenge, holding that provisions nearly identical to the Act’s were held facially constitutional in Casey.3 Id. The *538district court rejected the Organization’s argument that it should factually assess the degree of burden imposed by the Act under the new “undue burden” test adopted in Casey. Id. 819 F.Supp. at 85. It stated that the Organization should save this issue for “an as-applied challenge to the Act’s constitutionality.” Id. at 865. The district court then denied the Organization’s motion for stay pending appeal, and the Organization filed this emergency motion for stay and injunction.
The Supreme Court discussed the requirements for a stay pending appeal in Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987), and we outlined those same requirements in James River Flood Control Assoc. v. Watt, 680 F.2d 543, 544 (1982):
The party seeking a stay pending appeal must show (1) that it is likely to succeed on the merits; (2) that it will suffer irreparable injury unless the stay is granted; (3) that no substantial harm will come to other interested parties; and (4) that the stay will do no harm to the public interest.
We thus must evaluate the Organization’s showings of these four factors. We first recognize that an analysis of likelihood of success on the merits involves the threshold consideration of simply that issue without making a final determination on the merits of the appeal. The problem before us is not unlike that in ruling on an order granting or denying a preliminary injunction. Nevertheless, this standard compels us to embark upon such an exercise, considering the other three factors and balancing all of them, just as the district court did in its order. We are convinced that the district court did not err in denying the stay on the basis that the Organization had failed to sustain its burden, particularly in light of Casey.
The Organization first argues that the district court erred in analyzing the likelihood of success without making a factual assessment of the degree of burden imposed by the Act on the right to choose abortion. The substance of this argument is that Casey, in announcing the undue burden standard, had employed a factual analysis. The Casey opinion, authored by Justices O’Connor, Kennedy, and Souter, reaffirmed the validity of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and adopted the undue burden standard for reconciling the state’s interest with the woman’s constitutionally-protected liberty. — U.S. at -, 112 S.Ct. at 2821. Under that standard, it rejected facial challenges to Pennsylvania’s definition of medical emergency, the informed consent requirement, the requirement that women seeking an abortion be informed of the availability of certain materials (including information on fetal development and assistance available to the woman should she decide to carry the pregnancy to full term), and a twenty-four hour waiting period following receipt of the required information. Id. at -, 112 S.Ct. at 2822-26. The Supreme Court found unconstitutional, however, the requirement that the woman notify her spouse that she was about to have an abortion. Id. at -, 112 S.Ct. at 2831.
The three-justice opinion in Casey did not articulate the standard it applied in analyzing the facial challenge. The three justices went to extreme care to articulate their analysis of Roe and abandon its trimester framework. See id. — U.S. at -, 112 S.Ct. at 2818. They specifically overruled portions of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), as inconsistent with Roe. See Casey, — U.S. at -, 112 S.Ct. at 2823. They held that Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 21 L.Ed. 442 (1872), and Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), expressed views no longer consistent with our understanding of the family, the individual, or the Constitution. See id. — U.S. at -, 112 S.Ct. at 2830-31. Certainly after this careful review of, and selective departure from, earlier authority, had the *539three justices desired to depart from the facial challenge standard in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), as reiterated only a year ago in Rust v. Sullivan, 500 U.S. 173, 182-84, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991), we have no doubt that they would have done so explicitly. We draw support for this conclusion from the lack of reaction to Chief Justice Rehnquist’s dissent. The Chief Justice wrote that “because this is a facial challenge to the [Pennsylvania] Act, it is insufficient for petitioners to show that the [spousal] notification provision ‘might operate unconstitutionally under some conceivable set of circumstances.’” — U.S. at -, 112 S.Ct. at 2870 (Rehnquist, C.J., dissenting in part) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100). He then added a lengthy footnote asserting that Justices O’Connor, Kennedy, and Souter had ignored this point in their analysis. In view of the Chief Justice’s strong position, we believe that had the three justices been departing from the Salerno standard, they would have made a specific statement to that effect.
After Casey, Justice Scalia, joined by the Chief Justice and Justice White, dissented from the denial of a petition for writ of certiorari in Ada v. Guam Soc. of Obstetricians & Gynecologists, — U.S. -, -, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992), stating that the Court in Casey had not purported to change the well-established Salerno rule.
The Organization’s brief recognizes how critical this factual assessment is to its facial challenge. We simply do not read Casey as sustaining the argument that a factual assessment is necessary or permitted in such circumstances. We agree with the Fifth Circuit’s conclusion in Barnes v. Moore, 970 F.2d at 14 n. 2, that it could not interpret Casey as having overruled sub silentio longstanding Supreme Court precedent governing facial challenges. Id.
Accordingly, we conclude that in adopting the undue burden standard in Casey, the three-justice opinion did not depart from the Salerno standard, and the district court did not err in so holding.
When we turn to the discussion in Casey of the specific statutory provisions, we see that the three justices examined the spousal notification provision first by considering in detail the factfindings of the district court, and then by referring to scholarly journals and texts. Casey, — U.S. at -, 112 S.Ct. at 2826-28. The three Justices made clear that the studies and findings had confirmed their common sense conclusions. Id. at-, 112 S.Ct. at 2828. Certainly Barnes comments that, in this respect, Casey “may have employed a somewhat different standard” but it did not interpret Casey as having overruled Salerno. See Barnes, 970 F.2d at 14 n. 2. Casey’s discussion of the other sections of the statute reveals an analysis relying, for the most part, on direct statutory interpretation, on statutory interpretation in the court of appeals, and on earlier Supreme Court authority. See, e.g., — U.S. at -, 112 S.Ct. at 2822. On several occasions, particularly with relation to the twenty-four hour waiting period, the justices did consider practical consequences flowing from certain factual findings, but we do not read these discussions as essentially factual analyses. Id. at -, 112 S.Ct. at 2824. The factual components of the analysis simply follow the earlier discussion and the initial conclusion regarding the undue burden standard. Id. at -, 112 S.Ct. at 2822-26.
Our reading of Casey is not only material to our conclusions with respect to the facial challenge standards, but also demonstrates that the district court correctly held that the provisions of the Act are substantially similar to those examined in Casey, and that Casey thus mandated a finding of no undue burden. In analyzing the mandatory twenty-four hour waiting period, the district court had before it an affidavit describing the distances women must travel to reach the Organization’s clinic, asserting that the waiting period would often necessitate two visits to the clinic and a delay of more than twenty-four hours, and *540stating that this would increase the exposure of women seeking abortions to the harassment of anti-abortion protesters demonstrating outside the clinic. The affidavit contains facts almost identical to those before the district court in Casey, 744 F.Supp. at 1351, 1352. Assuming the affidavit statements here are true, they still do no more than establish a factual pattern held not to be an undue burden in Casey. We conclude that the district court, examining these facts in light of Casey, did not err in determining that the Organization had not demonstrated the likelihood of success on the merits.
Casey delineates a careful balance between the constitutional rights of the women seeking abortions, and those of the State seeking to regulate the performance of abortions. The district court recognized North Dakota’s interest in enforcing its statutes, and found that the plaintiffs had not demonstrated that they would be irreparably injured absent a stay. Fargo Women’s Health Org. v. Schafer, 819 F.Supp. 865, 866 (D.N.D.1993). The district court did not err in so ruling. The Organization has not met its burden as required in Hilton and Watt. In balancing all of the relevant factors, we conclude that the stay pending appeal should be denied.
The Organization urges us to remand for further proceedings, as the Supreme Court did in Casey. The remand in Casey, however, was substantially limited to consideration of the question of severability, which had been specifically treated in the district court’s opinion. See Casey, — U.S. at -, 112 S.Ct. at 2833; see also Planned Parenthood v. Casey, 978 F.2d 74 (3d Cir.1992) (on remand). No similar issues are presented in this case.
At argument, the State informed us that the Attorney General’s Office was preparing an opinion interpreting the Act. It would read the Act to authorize that the required information which must precede the informed consent by twenty-four hours be given by telephone. The North Dakota Statute authorizes physician’s agents to give this information. § 14-02.1-02(5). Thus, the State argued that the statute would not require two trips to the clinic, but only a telephone call and one trip. Further, the opinion would allow the several physicians referred to in the Act, including the referring physician, to determine gestational age, and a physician’s agent could give this information over the telephone. The State’s interpretation of its statute in this proposed opinion would eliminate many of the arguments supporting the presence of an undue burden. Should this opinion not be issued, or should it be issued and later substantially restricted, different issues could well be presented, particularly in a subsequent as-applied challenge to the Act.
We vacate the temporary stay pending appeal. We have expedited the appeal and will hear argument on the merits on April 14, 1993.
. I attach no significance to the fact that Justice Kennedy did not join Justice O’Connor's April 2, 1993, concurrence because the circumstances under which he did not participate in that ruling are unknown.
. The Organization raises no challenge to the two-parent consent provision which the preexisting Code contained.
. The definition of informed consent requires that at least twenty-four hours before the abortion, the physician, the referring physician, or the physician's agent tell the woman the name of the physician who will perform the abortion, the particular medical risks associated with the abortion procedure, the "probable gestational age of the unborn child" at the time of the abortion, and the medical risks of carrying the child to term. § 14-02. l-02(5)(a). Further, the physician or the physician's agent must inform the woman twenty-four hours before the abortion that medical assistance benefits may be available for childbirth and prenatal and neonatal care; that the father is liable to assist in support of the child even when he offers to pay for the abortion; and that she has the right to review certain printed materials describing the fetus and listing agencies that offer alternatives to abortion. § 14 — 02.l-02(5)(b). The woman must certify in writing before the abortion that she has received the required information and been informed of the opportunity to review the printed materials. § 14-02. l-02(5)(c).
The requirement of consent to perform the abortion is contained in section 14-02.1-03, which provides that no physician shall perform an abortion unless the physician certifies in writing that the woman gave informed consent as defined in section 14-02.1-02. None of the requirements of this subsection apply in case of medical emergency. § 14-02.1-03(1).
The definition of medical emergency is: "that condition which, on the basis of the physician's best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four hour delay will create grave peril of immediate and irreversible loss of major bodily function.” § 14-02.1-02(7).
.The district court found even more similar the Mississippi statutes which had been held constitutional in Barnes v. Moore, 970 F.2d 12 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992).