After notice and comment, as required by the Administrative Procedures Act, the Department of Health and Human Services issued a regulation.

The Health and Human Services (HHS) regulation “forbids discriminating on the basis of ‘gender identity’ and ‘termination of pregnancy’” under Obamacare, as US District Court Judge Reed O’Connor wrote in his opinion halting enforcement of those provisions in the rule.

The regs were to go into effect today. Judge O’Connor issued a nationwide injunction, the last of 2016. A few states, led by Texas, together with religious affiliated groups, headed to a reliable court and got what they came for.

Explaining the lawsuit, O’Connor wrote, “Plaintiffs claim the Rule’s interpretation of sex discrimination pressures doctors to deliver healthcare in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017.”

It’s an odd combination of two separate problems. The abortion prong is challenged by forcing physicians to perform abortions even if it violates their religious beliefs. What is intended by the gender identity prong isn’t clear at all. It could be that physicians are required to call patients by preferred pronouns, or it could mean that they exercise medical judgment that is gender dependent based upon claims of identity rather than physical reality.

What would violate the regulation? How a doc would perform a gyno exam on a dude isn’t exactly clear. Whether a doc should prescribe medication that’s problematic for a female to a transgender male is a question. And if not, then what’s the point? Politics and rhetoric aside, no matter how many studies by soft scientists defy genomics, a person born female doesn’t need a prostate exam.

Jonathan Adler raises the irony of this midnight injunction.

The injunction entered against the regulation applies nationwide. Some have criticized nationwide injunctions such as this because it facilitates forum shopping by plaintiffs. There’s little doubt that the plaintiff states filed suit where they did because they expected to find a more sympathetic judge than if they had filed elsewhere, such as in Washington, D.C. That’s good for plaintiffs who wish to challenge federal policy, but it also gives a single federal district court immense power over national policy.

When the purpose of the injunction is to thwart a regulation or guidance that you favor, this is characterized as “forum shopping” and vilified as gaming the system. When the sides flip, the need for a nationwide injunction is manifest, or the narrow use of injunction, say only applying to the specific parties or within the limited jurisdiction of the court, will allow irrevocable harm to millions of others.

Shortly before the election, UCLA law professor Samuel Bray posted a draft paper questioning the propriety of nationwide injunctions and proposing limitations on their use.  Specifically, Bray suggested the scope of an injunction against the federal government should be no broader than necessary to protect the plaintiffs. SCOTUSBlog discussed Bray’s research here. Given the election results, do not be surprised if some who might have been more amenable to Bray’s research when it was released develop a new skepticism — and if some of those who championed the use of nationwide injunctions to frustrate the Obama administration policies suddenly question their usefulness.

The scenario raises separate questions:

1. Should the government regulate political fantasy and beliefs that impact reality?*
2. Should a single judge be capable of enjoining the government nationwide?
3. Is Judge Reed O’Connor just a rubber stamp for conservative causes?

Each of these questions is significant, and worthy of stand-alone discussion, but that’s not the purpose of this post. There is an overarching question of what happens now, should the table turn and the arguments reverse.

We will see the rhetorical shifts on the varying sides of the arguments, from those who benefited before becoming those who can’t bear the detriment to come, as advocates scramble to explain why the things they explicitly said before are no different than what they will explicitly say in the future, even though it’s directly contradictory and inherently hypocritical. Lest anyone pretend otherwise, both sides will do the same thing, even while pretending that they aren’t, that the other side did it first and that the other side did it worse.

It’s not at all clear what the Trump administration will do when it comes to power. It’s anticipated that it will promote a very conservative agenda, and undo the regulations and guidance of the Obama administration. If so, there will likely be states and groups who will go to a single federal judge other than O’Connor to seek an injunction to prevent this from happening. They will identify their own judge, one who will view the law through their sympathies, and seek the same relief that Texas sought here.

The question is whether principle or partisanship rules. The answer lies in two things: what’s your bias and whether you believe the ends justify the means. To put the question in another context, Blackstone’s Ratio means that guilty men will walk free sometimes, because we have agreed to a principle that it is better that happen than innocent men be convicted. The principle could have gone the other way, that it’s more important to society that no guilty man goes unpunished.

Can you live with principle even if it means that your end goal might not be achieved? Or are you fully prepared to walk down the boulevard of intellectual dishonesty in pink hot pants if necessary to promote your political agenda? It will be a very crowded boulevard, and there will be many others egging you on to strut along with them.

There will be no shortage of issues, problems, laws and actions in the coming year that will test you on this question. The easy answer will be to go with whatever rationalization produces your desired goal. Adhering to principle is far harder, and will make you a person without a team. Can you do it?

*In this instance, there are two very distinct subparts to the HHS regulation, as the abortion and transgender prongs may share a political similarity but raise entirely different substantive issues that bear no similarity.