Amidst the downpour of Supreme Court rulings, I just wanted to highlight an excellent ruling yesterday from the Ninth Circuit. In California v. Azar, a Ninth Circuit panel granted the motion by the U.S. Department of Health and Human Services for a stay of orders of three separate district courts that preliminarily enjoined HHS from implementing its revised regulations imposing restrictions on funding of pre-pregnancy family planning services. The plaintiffs in the underlying actions included some two dozen states and various Planned Parenthood affiliates.
In its per curiam order, the panel (which consisted of three Republican appointees) explained that the HHS regulations are substantially similar to—indeed, in one respect less restrictive than—the 1988 regulations that the Supreme Court found permissible in its 1991 ruling in Rust v. Sullivan. Further, the panel explained, the district courts were wrong to contend that two provisions of law adopted since Rust impliedly repealed or amended the underlying statutory provision or otherwise disallowed the HHS regulations.
Thus, in addition to allowing the HHS regulations to go into effect, the panel decision promises HHS a victory on the merits in the underlying litigation.
I understand that a similar case is pending in the Fourth Circuit, arising from a preliminary injunction imposed by a district court in Maryland. If the Fourth Circuit doesn’t likewise promptly overturn that injunction, look for HHS to seek and obtain relief from the Supreme Court.