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COM. OF MASS. v. SECRETARY OF HEALTH & HUM. SERV.

No. 88-1279.

899 F.2d 53 (1990)

COMMONWEALTH OF MASSACHUSETTS, et al., Plaintiffs, Appellees, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellant.

United States Court of Appeals, First Circuit.

March 19, 1990.

Attorney(s) appearing for the Case

Alfred Mollin, Appellate Staff, Civ. Div., Dept. of Justice, with whom Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., Boston, Mass., D. Mass., Joel Mangel, Deputy Chief Counsel, Public Health Service, Rockville, Md., Carol Conrad, Atty., Office of the Gen. Counsel, Dept. of Health and Human Services and John F. Cordes, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for defendant, appellant.

James M. Shannon, Atty. Gen., Boston, Mass., for the Com. of Mass., with whom Ruth A. Bourquin, Asst. Atty. Gen., Boston, Mass., David Cole of the Center for Constitutional Rights, Wendy Warring and Hill & Barlow, Boston, Mass., for intervenor Mary Moe, were on brief, for plaintiffs, appellees.

James L. Feldesman, with whom Susan D. Lauscher and Feldesman, Tucker, Leifer, Fidel & Bank, Washington, D.C., for Nat. Family Planning and Reproductive Health Ass'n and American Public Health Ass'n, were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

OPINION EN BANC

BOWNES, Circuit Judge.

The Secretary of Health and Human Services (HHS) appealed from an injunction issued by the district court of Massachusetts enjoining enforcement of regulations promulgated under Title X of the Public Health Services Act, 42 U.S.C. § 300 et seq. The regulations significantly alter HHS's interpretation of section 1008 of Title X, which provides that "[n]one of the funds

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