FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SKYLINE WESLEYAN CHURCH, No. 18-55451
Plaintiff-Appellant,
D.C. No.
v. 3:16-cv-00501-
CAB-DHB
CALIFORNIA DEPARTMENT OF
MANAGED HEALTH CARE; MICHELLE
ROUILLARD, in her official capacity ORDER AND
as Director of the California AMENDED
Department of Managed Health OPINION
Care,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted November 4, 2019
Pasadena, California
Filed May 13, 2020
Amended July 21,2020
2 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
Before: Mary M. Schroeder and Michelle T. Friedland,
Circuit Judges, and Lee H. Rosenthal, * District Judge.
Order;
Opinion by Judge Friedland
SUMMARY **
Civil Rights
The panel reversed the district court’s ruling that it
lacked jurisdiction over plaintiff’s federal free exercise of
religion claim, vacated the district court’s ruling that it
lacked jurisdiction over plaintiff’s other claims, and
remanded for further proceedings.
In 2014, the California Department of Managed Health
Care and its Director (collectively, the “DMHC”) issued
letters to seven health insurers directing them that, effective
immediately, their insurance plans had to include coverage
for legal abortion. The DMHC had determined that its prior
practice of permitting the insurers to offer health plans with
some abortion-related restrictions was not consistent with
California statutory and constitutional law, which provides
that legal abortion is a basic health care service that must be
offered. Skyline Wesleyan Church, whose members believe
that abortion is impermissible except possibly when the life
*
The Honorable Lee H. Rosenthal, Chief United States District
Judge for the Southern District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 3
of the pregnant woman is at risk, filed suit alleging, among
other things, that its right to the free exercise of religion
required the DMHC to approve a health insurance plan that
comported with Skyline’s religious beliefs about abortion.
The district court dismissed the case, reasoning that
jurisdiction was lacking because (1) any injury Skyline had
suffered could not be redressed by a court order directed at
the DMHC; and (2) any controversy was not ripe because
the DMHC had not yet received a request for approval of an
insurance plan that would be consistent with Skyline’s
religious beliefs.
The panel first held that Skyline had established each of
the three elements of standing with respect to its federal free
exercise claim and, relatedly, that this claim was
constitutionally ripe. The panel held that Skyline had
suffered an injury in fact, noting that before the letters were
sent, Skyline had insurance that excluded abortion coverage
in a way that was consistent with its religious beliefs. After
the letters were sent, Skyline did not have that coverage, and
it had presented evidence that its new coverage violated its
religious beliefs. The panel further held that there was a
direct chain of causation from the DMHC’s directive
requiring seven insurers to change their coverage, to
Skyline’s insurer’s doing so, to Skyline’s losing access to the
type of coverage it wanted.
Addressing redressability, the panel noted, as an initial
matter, that Skyline requested nominal damages in its
complaint. Nominal damages would redress Skyline’s
injury, even if only to a minimal extent. The panel further
concluded that Skyline’s other requested forms of relief—a
declaration that the coverage requirement violated its rights
under the Free Exercise Clause and a permanent
injunction—would likely provide Skyline redress.
4 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
The panel held that Skyline’s free exercise claim was
prudentially ripe. After the DMHC formalized the abortion
coverage requirement, there was an immediate effect upon
Skyline: its insurer promptly amended Skyline’s plan. The
panel held that Skyline’s challenge to the coverage
requirement was fit for decision now and that Skyline did
not need to first seek an exemption from the coverage
requirement because the enforcement of that requirement
had already caused injury.
The panel stated that aspects of its discussion of the
justiciability of the free exercise claim may apply equally to
Skyline’s other claims, but the parties had only briefed the
merits of the federal free exercise claim on appeal. The
panel vacated the district court’s ruling that the other claims
were not justiciable and remanded to the district court to
reassess the justiciability of Skyline’s remaining claims in
light of the panel’s decision.
The panel declined to exercise its equitable discretion to
reach the merits of Skyline’s federal free exercise claim.
The panel noted that after oral argument, the Supreme Court
granted a petition for a writ of certiorari in which one of the
questions presented was whether Employment Division v.
Smith, 494 U.S. 872 (1990), should be revisited. Skyline’s
free exercise claim turned on the application of Smith and
later caselaw implementing its holding. Rather than waiting
to decide the appeal until after the Supreme Court’s decision,
the panel remanded for the district court to determine, after
resolving whether Skyline’s other claims were justiciable,
when it would be appropriate to proceed on the merits of
Skyline’s claims for which there was jurisdiction.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 5
COUNSEL
Jeremiah J. Galus (argued), Kristen K. Waggoner, and Erik
W. Stanley, Alliance Defending Freedom, Scottsdale,
Arizona; John J. Bursch, David A. Cortman, and Christiana
Holcomb, Alliance Defending Freedom, Washington, D.C.;
Charles S. LiMandri, Freedom of Conscience Defense Fund,
Rancho Santa Fe, California; for Plaintiff-Appellant.
Karli Eisenberg (argued), Deputy Attorney General; Niromi
W. Pfeiffer, Supervising Deputy Attorney General; Julie
Weng-Gutierrez and Cheryl L. Feiner, Senior Assistant
Attorneys General; Xavier Becerra, Attorney General;
Office of the Attorney General, Sacramento, California; for
Defendants-Appellees.
Tyler R. Andrews, San Clemente, California, for Amici
Curiae The Jewish Coalition for Religious Liberty and The
Ethics & Religious Liberty Commission.
ORDER
Appellees’ Petition for Panel Rehearing is GRANTED
IN PART. The opinion filed on May 13, 2020, reported at
959 F.3d 341, is amended as follows.
On page 352, replace with .
On page 353, replace with
.
On page 355, replace with .
On page 355, replace with .
No further petitions for panel rehearing or rehearing en
banc will be entertained.
OPINION
FRIEDLAND, Circuit Judge:
The California Department of Managed Health Care and
its director (collectively, the “DMHC”) regulate most of the
state’s commercial health insurance market, including by
determining what coverage insurers must provide. In the
wake of publicity regarding DMHC-approved insurance
plans that limited or excluded coverage for legal abortion,
the DMHC analyzed whether restrictions like those were
consistent with California statutory and constitutional law.
The DMHC concluded that, under California law, legal
abortion is a basic health care service that must be offered.
The DMHC determined, however, that it had erroneously
allowed seven insurers to offer plans with some abortion-
related restrictions. In 2014, the DMHC issued a directive
informing those seven insurers that, effective immediately,
their plans had to include abortion coverage. Although the
directive did not provide for any exceptions, the DMHC
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 7
agreed in 2015 to allow one insurer to offer a plan to
religious employers that would exclude abortion coverage
except when the pregnancy was the result of rape or incest
or the life of the pregnant woman was threatened.
Members of the Skyline Wesleyan Church share the
religious belief that abortion is impermissible except
possibly when the life of the pregnant woman is at risk. Until
2014, Skyline had obtained health insurance for its
employees via an insurance plan that restricted abortion
coverage consistent with that belief. Since the DMHC’s
directive, however, none of the plans available to Skyline
have been comparable.
In 2016, Skyline sued the DMHC. Skyline claims,
among other things, that its right to the free exercise of
religion requires the DMHC to approve a health insurance
plan that comports with Skyline’s religious beliefs about
abortion. The district court dismissed the case, reasoning
that jurisdiction was lacking because (1) any injury Skyline
had suffered could not be redressed by a court order directed
at the DMHC, and (2) any controversy was not ripe because
the DMHC had not yet received a request for approval of an
insurance plan that would be consistent with Skyline’s
religious beliefs. Skyline appealed.
We hold that Skyline’s claim under the Free Exercise
Clause of the First Amendment is justiciable. But we decline
to exercise our discretion to reach the merits in the first
instance and therefore remand to the district court for further
proceedings.
8 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
I.
A.
The Knox-Keene Health Care Service Plan Act of 1975,
Cal. Health & Safety Code § 1340 et seq., provides the legal
framework for California’s regulation of health maintenance
organizations (HMOs) and managed care organizations
(MCOs). Rea v. Blue Shield of Cal., 172 Cal. Rptr. 3d 823,
827 (Ct. App. 2014). Regulated insurers must obtain a
license from the DMHC to engage in business in the state.
See Cal. Health & Safety Code § 1349. As of early 2015,
there were more than 20 million enrollees in DMHC-
regulated health insurance plans, accounting for most
insurance enrollees in California.
The Knox-Keene Act tasks the DMHC with ensuring
access to quality care for enrollees. Id. § 1341(a). Covered
health plans are generally required to provide their members
with all “basic health care services.” Id. § 1367(i). The
Knox-Keene Act includes a seven-item statutory definition
of “basic health care services,” see id. § 1345(b), 1 which the
1
The statute defines “basic health care services” as:
(1) Physician services, including consultation and
referral.
(2) Hospital inpatient services and ambulatory care
services.
(3) Diagnostic laboratory and diagnostic and
therapeutic radiologic services.
(4) Home health services.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 9
DMHC has further fleshed out by regulation, see Cal. Code
Regs. tit. 28, § 1300.67.
The Knox-Keene Act vests the DMHC director with
discretion to, “for good cause, by rule or order exempt a plan
contract or any class of plan contracts” from the requirement
of providing all “basic health care services.” Cal. Health &
Safety Code § 1367(i). The DMHC director also has the
authority to adopt rules or issue orders exempting, for
example, otherwise covered insurers from the entirety of the
Knox-Keene Act. Id. § 1343(b); see also id. § 1344(a)
(allowing the director to “waive any requirement of any rule
or form in situations where in the director’s discretion that
requirement is not necessary in the public interest or for the
protection of the public, subscribers, enrollees, or persons or
[insurers] subject to [the Knox-Keene Act]”).
B.
In late 2013, media outlets reported that two Catholic
universities in California, Loyola Marymount University
and Santa Clara University, had taken steps to exclude
coverage for what the universities termed “elective”
abortions from the DMHC-regulated health insurance plans
(5) Preventive health services.
(6) Emergency health care services, including
ambulance and ambulance transport services and
out-of-area coverage . . . . [and] ambulance and
ambulance transport services provided through
the “911” emergency response system.
(7) Hospice care pursuant to [a different provision of
the California Health and Safety Code].
Cal. Health & Safety Code § 1345(b).
10 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
they obtained. Over the next several months, the DMHC
conducted an internal review. That review included an
assessment of the DMHC’s previous practices. This
assessment showed that although the DMHC had not
developed a formal policy about whether insurers could
restrict coverage for abortions, there were seven insurers that
allowed subscribers to sign up for coverage with abortion-
related exclusions, and the DMHC had either approved those
plans or allowed them to take effect by not objecting.
As part of its review, the DMHC requested information
from those insurers. The responses revealed that, of the
more than 20 million individuals enrolled in DMHC-
regulated insurance plans, at least 28,647 were enrolled in
plans restricting abortion coverage. 2
The DMHC ultimately concluded, based on both the
Knox-Keene Act and California constitutional and statutory
provisions addressing the right to choose whether to carry a
pregnancy to term, that legal abortion is a “basic health care
service” that insurers must cover. On August 22, 2014, the
DMHC sent roughly identical two-page letters (the
“Letters”) to the seven insurers that had offered plans with
abortion coverage restrictions. The Letters stated that those
insurers were required to immediately remove restrictions on
covering legal abortions and submit to the DMHC revised
2
The 28,647 enrollees were reported by four of the seven insurers
who offered abortion-restricting plans. No enrollees were reported by
the other three insurers because the DMHC did not request information
from the smallest of the seven insurers, one of the insurers it did contact
did not provide a response, and the final insurer responded that there
were no enrollees in its abortion-restricting plan.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 11
plan documents reflecting that change. 3 The Letters also
stated that, because abortion is a “basic health care service,”
an insurer could bring its plan language into compliance by
simply “omit[ting] any mention of coverage for abortion
services in health plan documents.” The Letters did not state
that there was any exemption based on an employer’s
objection to abortion, or that there would be a process for
applying for exemptions in the future. 4 All seven insurers
who received the Letters promptly complied with the
DMHC’s directive. We refer to the directive to cover
abortion services, as captured through both the underlying
provisions of California law and the Letters, as the
“Coverage Requirement.”
C.
Skyline is a nonprofit Christian church in La Mesa,
California. It employs more than 100 people, many part-
time. Skyline adheres to the view that abortion “is
incompatible with the Bible’s teachings about the sanctity of
human life.” Its beliefs countenance only one possible
allowance for an abortion: in those “rare pregnancies where
there are grave medical conditions threatening the life of the
mother,” and even then only after “medical and spiritual
counseling” and “very prayerful consideration.” As
Skyline’s pastor testified, beliefs that the church and its
3
The Letters explained that insurers were “not required to cover
abortions that would be unlawful,” citing section 123468 of the
California Health and Safety Code, which defines unauthorized abortion
under California law.
4
The Letters did state that “individual health care provider[s]”
(presumably meaning medical professionals) and “health care
facilit[ies]” could not be required to participate in providing or paying
for abortions if they had objections based on “conscience or religion.”
12 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
members hold do not permit an abortion for a pregnancy
resulting from rape or incest.
Skyline has, at all relevant times, provided employee
health care coverage through a DMHC-regulated plan. It
does so for several reasons, including compliance with the
federal Affordable Care Act, a belief that providing health
insurance is the proper way to care for its employees even if
not legally required, and a concern that non-DMHC-
regulated options (like self-insurance) would not be
affordable. Before the DMHC sent the Letters, Skyline had
a DMHC-regulated Aetna plan that Skyline considered
acceptable and consistent with its beliefs about abortion. 5
Skyline has explained that the only coverage consistent with
its beliefs would exclude “voluntary abortion, except when
medically necessary to save the mother’s life.”
After the Letters were sent, Aetna removed references to
abortion restrictions from Skyline’s coverage documents.
As the Letters had advised, this meant that the plan would
cover abortion as a “basic health care service.” When
Skyline learned that its plan had changed, it contacted its
insurance broker to find out whether it could obtain a plan
that excluded most abortion coverage, such as through a
religious exemption from the Coverage Requirement. Aetna
informed Skyline’s broker that it no longer offered any
options that restricted coverage for legal abortion, because
of “the 08-22-2014 California abortion mandate.” Since
5
The parties have not pointed us to the text of Skyline’s former plan.
But Skyline has presented sufficient evidence, for purposes of summary
judgment, that the plan was consistent with its beliefs. See VMG Salsoul,
LLC v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016) (explaining that, in
evaluating an appeal from a decision granting a defendant’s motion for
summary judgment, we must view the record in the light most favorable
to the plaintiff).
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 13
then, Skyline has switched to a different DMHC-regulated
insurance provider, but Skyline has not obtained a plan that
is consistent with its beliefs about abortion.
Shortly after sending the Letters, the DMHC began
receiving inquiries about possible exemptions from the
Coverage Requirement. About a year later, in October 2015,
the DMHC approved one plan that did limit abortion
coverage. That plan, offered by Anthem Blue Cross, is
available to “religious employers” as defined in section
1367.25(c) of the California Health and Safety Code. 6 The
plan generally excludes abortion coverage, but it covers
abortion services both when the pregnancy is the result of
rape or incest and when the pregnant woman’s life would be
in danger without the abortion.
The parties appear to agree that Skyline is a “religious
employer” that would be eligible to purchase the Anthem
Blue Cross plan. They also agree that the Anthem Blue
Cross plan is inconsistent with Skyline’s beliefs about
abortion, because that plan includes coverage for abortion
when the pregnancy is the result of rape or incest. Since the
Letters were sent, no insurer has submitted a request to the
6
Section 1367.25(c) defines a “religious employer” as “an entity for
which each of the following is true: (A) The inculcation of religious
values is the purpose of the entity. (B) The entity primarily employs
persons who share the religious tenets of the entity. (C) The entity serves
primarily persons who share the religious tenets of the entity. (D) The
entity is a nonprofit organization as described in [a provision of the
federal income tax code].” That section creates an exemption from a
requirement that insurers cover prescription contraceptives—a
requirement not at issue in this case. See Catholic Charities of
Sacramento, Inc. v. Superior Court, 85 P.3d 67, 73–74 (Cal. 2004).
14 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
DMHC to exclude coverage for abortions when the
pregnancy is the result of rape or incest.
D.
In February 2016, Skyline sued the DMHC. Skyline
alleged that the Coverage Requirement violates the U.S.
Constitution’s Free Exercise Clause, Establishment Clause,
and Equal Protection Clause; similar provisions of the
California Constitution; and the California Administrative
Procedure Act. Its Complaint sought, among other things:
(1) a declaration that application of the Coverage
Requirement to Skyline is unlawful; (2) a permanent
injunction requiring the DMHC not to enforce the Coverage
Requirement against Skyline; and (3) an award of nominal
damages, costs, and attorney’s fees.
The DMHC moved to dismiss the Complaint, arguing
that Skyline lacked Article III standing and that each of its
claims failed as a matter of law. The United States District
Court for the Southern District of California denied the
motion as to all issues except as to the equal protection
claims under the U.S. and California Constitutions, which
the district court dismissed with leave to amend. Skyline
opted not to replead those claims. Following discovery,
Skyline and the DMHC cross-moved for summary
judgment. Each party argued that it was entitled to judgment
in its favor on the merits of the claims that remained in the
case, and the DMHC also renewed its argument that Skyline
lacked standing.
Following recusal by the district judge who had been
presiding up to that point, the case was reassigned to a new
judge. That judge then granted summary judgment to the
DMHC without reaching the merits. The district court
agreed with the DMHC that Skyline lacked standing. The
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 15
court assumed without deciding that Skyline had a
cognizable injury that could be fairly traced to the DMHC,
but held that any injury was not redressable because
alleviating Skyline’s injury would “require[] action by a
non-party health care [insurer] in the form of furnishing
[Skyline] with a plan containing the exemption it desires.”
Although standing was the only jurisdictional issue the
DMHC had raised, the district court also concluded that the
case was constitutionally and prudentially unripe because
the DMHC had not received, and therefore had no occasion
to evaluate, a formal request for “approval of a health care
plan that reflects [Skyline’s] religious beliefs.”
Skyline timely appealed. In its appeal, Skyline argues
that it has standing, that its claims are ripe, and that we
should resolve in the first instance the merits of its free
exercise claim by holding that it is entitled to judgment in its
favor on that claim.
II.
We review de novo a district court’s decision to grant
summary judgment, including its legal conclusions
regarding standing and ripeness. See Cottonwood Envtl.
Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1079 (9th Cir.
2015).
III.
“Our role is neither to issue advisory opinions nor to
declare rights in hypothetical cases, but to adjudicate live
cases or controversies consistent with the powers granted the
judiciary in Article III of the Constitution.” Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th
Cir. 2000) (en banc). Standing and ripeness are among the
justiciability doctrines that help us adhere to that role. See
16 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
Alaska Right to Life Political Action Comm. v. Feldman,
504 F.3d 840, 848–49 (9th Cir. 2007).
To satisfy the “irreducible constitutional minimum” for
standing, a plaintiff must establish “three elements”:
(1) injury in fact (2) that is fairly traceable to the challenged
conduct of the defendant and (3) that is likely to be redressed
by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–61 (1992). “A plaintiff must demonstrate standing
for each claim he or she seeks to press and for each form of
relief sought.” Wash. Envtl. Council v. Bellon, 732 F.3d
1131, 1139 (9th Cir. 2013).
“Ripeness doctrine ‘is designed to prevent the courts,
through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect . . . agencies from
judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the
challenging parties.’” Safer Chems., Healthy Families v.
EPA, 943 F.3d 397, 411 (9th Cir. 2019) (alteration in
original) (quoting Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726, 732–33 (1998)). Determining whether a claim
is ripe often requires assessing both constitutional
requirements and prudential factors. See, e.g., Thomas,
220 F.3d at 1138.
Our discussion of justiciability proceeds in three parts.
First, we hold that Skyline has established each of the three
elements of standing with respect to its federal free exercise
claim and, relatedly, that this claim is constitutionally ripe.
Second, we conclude that Skyline’s free exercise claim is
prudentially ripe. Third, we vacate the district court’s ruling
that none of Skyline’s other claims are justiciable and
remand for reassessment in light of our decision regarding
the justiciability of the free exercise claim.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 17
A.
1.
An “injury in fact” as needed for Article III standing
must be “(a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S.
at 560 (citations and quotation marks omitted). These
requirements overlap significantly with constitutional
ripeness, which requires that a case “present issues that are
‘definite and concrete, not hypothetical or abstract.’” Bishop
Paiute Tribe v. Inyo County, 863 F.3d 1144, 1153 (9th Cir.
2017) (quoting Thomas, 220 F.3d at 1139). We see no
distinction between injury in fact and constitutional ripeness
in this case, and therefore proceed, as we often do, under the
same “rubric” to determine whether both requirements are
satisfied. See id.
Skyline argues that its free exercise claim is about
“whether the DMHC may lawfully apply the abortion-
coverage requirement to the Church’s healthcare plan.”
Skyline claims it was injured once the Letters directed its
insurer to immediately amend Skyline’s coverage to
eliminate the previous abortion exclusion, and its insurer
complied. Skyline contends that the Coverage Requirement
forced it either to have coverage incompatible with its
religious beliefs or to forego a DMHC-regulated plan. In
Skyline’s view, this injury is concrete and actual “because
the DMHC has already enforced—and continues to
enforce—the [Coverage Requirement] in a way that harms
Skyline Church.”
The DMHC, by contrast, argues that Skyline’s free
exercise claim is tied to the harm that would be inflicted if
the DMHC were to reject a future request for a Skyline-
tailored exemption from the Coverage Requirement—in
18 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
other words, an exemption similar to, but more restrictive of
abortion coverage than, the one already allowed for the
Anthem Blue Cross plan. The DMHC contends that no such
exemption request has been properly made and that,
accordingly, it has not definitively ruled out granting one.
The DMHC’s position is that Skyline’s injury therefore
remains hypothetical, not actual.
We hold that Skyline has suffered an injury in fact.
Before the Letters were sent, Skyline had insurance that
excluded abortion coverage in a way that was consistent with
its religious beliefs. After the Letters were sent, Skyline did
not have that coverage, and it has presented evidence that its
new coverage violated its religious beliefs. There is nothing
hypothetical about the situation. Although we might have a
fuller record in front of us if there had been a request for a
Skyline-tailored exemption and a response to that request,
Article III does not require Skyline to have taken further
steps before seeking redress in court for its injury.
This case contrasts sharply with, for example, our
caselaw addressing preenforcement challenges to the
application of rules or statutes. Such challenges can proceed
only when the plaintiff “face[s] ‘a realistic danger of
sustaining a direct injury as a result of the [law’s] operation
or enforcement.’” See Thomas, 220 F.3d at 1139 (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979)). For there to be jurisdiction over a
preenforcement challenge, “there must be a genuine threat
of imminent prosecution.” Id. (citation and quotation marks
omitted). The DMHC suggests that Skyline does not face
such a threat. But that suggestion goes to an issue that is
simply irrelevant, because this case involves a
postenforcement challenge: the Letters told seven insurers
that they were required to immediately change their
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 19
coverage, and all of them (including Skyline’s insurer) have
already complied. The situation might be different if the
DMHC had made clear that no coverage changes would be
required until individualized exemption requests had been
presented and reviewed, but that is not what happened.
Relatedly, we have held that some challenges to
“benefit-conferring rule[s]” should be dismissed as unripe
when those rules have not yet been applied to make benefit
decisions. See Mont. Envtl. Info. Ctr. v. Stone-Manning,
766 F.3d 1184, 1190–91 (9th Cir. 2014) (quoting Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 69 (1993)
(O’Connor, J., concurring in the judgment)). But this
approach is intended to make sure that we do not
prematurely exercise jurisdiction when a rule has the effect
of only potentially precluding a future benefit, and we cannot
make a “firm prediction” that the future benefit will actually
be unavailable to the plaintiff. See Freedom to Travel
Campaign v. Newcomb, 82 F.3d 1431, 1435–36 (9th Cir.
1996) (quoting Catholic Soc. Servs., 509 U.S. at 69
(O’Connor, J., concurring in the judgment)). Here, there is
no need to make an uncertain prediction because Skyline has
already lost something it previously had.
2.
A plaintiff must show that its “injury is ‘fairly traceable
to the challenged action of the defendant, and not the result
of the independent action of some third party not before the
court.’” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir.
2014) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)).
Purely “self-inflicted injuries” are insufficient. See Clapper
v. Amnesty Int’l USA, 568 U.S. 398, 415–18 (2013). We do
not, however, “require the defendant’s action to be the sole
source of injury,” Wash. Envtl. Council, 732 F.3d at 1142,
and “[c]ausation may be found even if there are multiple
20 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
links in the chain connecting the defendant’s unlawful
conduct to the plaintiff’s injury,” Mendia, 768 F.3d at 1012.
Here, there is a direct chain of causation from the
DMHC’s directive requiring seven insurers to change their
coverage, to Skyline’s insurer’s doing so, to Skyline’s losing
access to the type of coverage it wanted. The DMHC argues
that any injury is “self-inflicted” because Skyline chose to
continue having a DMHC-regulated plan rather than either
purchasing a non-DMHC-regulated plan or refraining from
providing employee health insurance coverage at all—in
which case Skyline would potentially be required to make a
“shared responsibility” payment to the Internal Revenue
Service pursuant to the Affordable Care Act. See 26 U.S.C.
§ 4980H(a). But Skyline has offered evidence that resorting
to such alternatives would be a worse fit for its needs than
having a DMHC-regulated plan. It can hardly be said that
Skyline caused its own injury when it has shown that, if it
were to pursue any of the alternatives floated by the DMHC,
it would remain worse off than it had been before the DMHC
issued the Letters.
3.
To establish redressability, a plaintiff must show that “it
is likely, as opposed to merely speculative, that [its] injury
will be redressed by a favorable decision.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 181 (2000). It is not necessary to show “a guarantee
that [the plaintiff’s] injuries will be redressed.” Renee v.
Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (quoting
Graham v. FEMA, 149 F.3d 997, 1003 (9th Cir. 1998)).
As an initial matter, Skyline requested nominal damages
in its Complaint. Nominal damages would redress Skyline’s
injury, even if only to a minimal extent. Nothing more is
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 21
needed to establish redressability for that form of relief. See
Jacobs v. Clark Cty. Sch. Dist., 526 F.3d 419, 425–27 (9th
Cir. 2008). 7
Skyline also sought a declaration that the Coverage
Requirement violates its rights under the Free Exercise
Clause and a permanent injunction requiring the DMHC not
to enforce the Coverage Requirement. We conclude that
these forms of relief, which can be treated together for
purposes of our discussion, would likely provide Skyline
redress. See Clark v. City of Lakewood, 259 F.3d 996, 1007
(9th Cir. 2001).
The DMHC argues that a favorable decision would be
unlikely to redress Skyline’s injury because Skyline cannot
show that an insurer would likely agree to offer coverage
consistent with Skyline’s beliefs. It is true that redressability
is lacking “if the injury complained of is ‘th[e] result [of] the
independent action of some third party not before the
7
When the DMHC argued in the district court that Skyline lacked
standing, Skyline did not, in either its opposition brief or during the
hearing on the motion, respond that it had standing at least to recover
nominal damages. Although we generally do not “entertain[] arguments
on appeal that were not presented or developed before the district court,”
we have discretion to do so when, as relevant here, “the issue presented
is purely one of law and either does not depend on the factual record
developed below, or the pertinent record has been fully developed.” See
In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.
2010) (first quoting Peterson v. Highland Music, Inc., 140 F.3d 1313,
1321 (9th Cir. 1998); then quoting Bolker v. Comm’r, 760 F.2d 1039,
1042 (9th Cir. 1985)). The question whether Skyline’s injury is
redressable through nominal damages is such a purely legal question. In
any event, our decision to reach this issue is not dispositive of whether
there is jurisdiction over Skyline’s free exercise claim because, for the
reasons explained below, Skyline’s injury is also redressable through
other forms of relief it requested.
22 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
court.’” Bennett, 520 U.S. at 169 (alterations and emphasis
in original) (quoting Lujan, 504 U.S. at 560–61). But a
plaintiff does have standing when the defendant’s actions
produce injury through their “determinative or coercive
effect upon the action of someone else.” Id.; see also Dep’t
of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019)
(explaining that standing is present when the theory of harm
“does not rest on mere speculation about the decisions of
third parties; it relies instead on the predictable effect of
Government action on the decisions of third parties”). 8
Here, the DMHC’s action of issuing the Letters had a
“determinative or coercive effect” on the seven insurers who
received them. See Bennett, 520 U.S. at 169. Before the
DMHC issued the Letters, those seven insurers had offered
plans with abortion coverage restrictions, some of which
comported with Skyline’s beliefs. Then, a regulatory agency
with jurisdiction to approve (or disapprove) the terms of
those insurers’ offerings throughout California informed the
insurers that, “effective [immediately],” they “must comply
with California law with respect to the coverage of legal
abortions” by removing such restrictions. Predictably, all
seven complied.
8
This aspect of redressability has some overlap with the traceability
requirement. See Allen v. Wright, 468 U.S. 737, 753 n.19 (1984)
(explaining that, although traceability and redressability are separate
inquiries, they were initially articulated as “two facets of a single
causation requirement” (citation omitted)), abrogated on other grounds
by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118
(2014). We focus on it in our redressability discussion because the
DMHC’s main argument is not that the Letters did not cause insurers to
change their coverage, but rather that a court order could not effectively
undo that change.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 23
The fact that insurers had previously offered plans that
were acceptable to Skyline is strong evidence that, if a court
were to order that the Coverage Requirement could not be
applied to prevent approval of a health plan for Skyline that
comports with Skyline’s religious beliefs, at least one of the
many insurers who do business in California would agree to
offer the type of plan Skyline seeks. We acknowledge that
it is possible no insurer would do this. But we need not be
certain how insurers would respond. See Renee, 686 F.3d at
1013. Instead, our inquiry is focused on whether the
predictable effect of an order granting the relief Skyline
seeks is that at least one insurer would be willing to sell it a
plan that accords with its religious beliefs. We conclude that
is the predictable effect.
This redressability conclusion comports with our
precedent as well as that of the Eighth Circuit. In Stormans,
Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), for example,
we addressed a challenge to rules promulgated by the
Washington State Board of Pharmacy that, among other
things, required pharmacies to dispense medications
approved by the Federal Drug Administration. Id. at 1113,
1116. The plaintiffs, who included a pharmacy and two
individual pharmacists, contended that dispensing Plan B, an
FDA-approved contraceptive drug, would conflict with their
religious beliefs. Id. at 1114, 1117. Although the rules did
not obligate pharmacists to dispense medications to which
they objected, the plaintiff pharmacists contended that the
rules required their employers to hire additional pharmacists
in order to accommodate their beliefs, putting at risk their
jobs with any employer who could not hire additional staff.
Id. at 1117. Indeed, one of the plaintiff pharmacists had
already lost her job because her employer could not
accommodate her refusal to dispense Plan B, while the other
plaintiff pharmacist expected to be fired on similar grounds.
24 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
See id. at 1121. We held that both of the individual
pharmacist plaintiffs had standing. Id. at 1119–22. We
noted that those plaintiffs’ injuries—tied to the substantial
risk of losing their jobs—were “indirect” because the harm
depended on actions taken by their employers. Id. at 1121.
But we explained that their injuries were redressable
because, if the challenged rules were invalidated, the
pharmacists would “not be limited to employment only at
pharmacies able to accommodate their religious views.” Id.
at 1122. Similarly, here, if Skyline’s challenge succeeds,
Skyline will not be limited to purchasing health insurance
that either conflicts with its beliefs or conflicts with its desire
to purchase a DMHC-regulated plan.
The Eighth Circuit’s decision in Wieland v. United States
Department of Health & Human Services, 793 F.3d 949 (8th
Cir. 2015), addressed a redressability question even more
analogous to that here. In Wieland, a member of the
Missouri legislature and his spouse challenged provisions of
the Affordable Care Act and implementing regulations that
require certain insurers to cover contraceptive services. See
id. at 952–53. The plaintiffs claimed that these laws caused
their state-provided group health care plan to include
contraceptive coverage, and that this coverage—which they
had previously been able to opt out of—violated their
religious beliefs. See id. at 952–54. The Eighth Circuit held
that the redressability requirement of standing was satisfied.
Id. at 957. Even though a court order enjoining the federal
government from enforcing the challenged laws would not
require the plaintiffs’ state-provided health care plan to offer
a contraceptive-free option, the fact that the plan had done
so before the enactment of the challenged provisions was
“persuasive evidence that [the plan] would do so again if the
[plaintiffs were to] obtain their requested relief.” Id. So too
here: we can infer from the insurers’ previous practices that,
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 25
if the DMHC were enjoined from enforcing the Coverage
Requirement as to any plan purchased by Skyline, Skyline
could likely find a DMHC-regulated insurer willing to offer
it a plan with the limitations it seeks on abortion coverage—
as had been true before the DMHC sent the Letters.
The DMHC also argues that Skyline’s suit does not
challenge the statutes and constitutional provisions that
underpin the Letters and, as a result, any court order would
not provide redress because those requirements would
remain in place no matter what such an order might say about
the Letters. But we do not view this litigation as narrowly
focused on the Letters themselves. We construe Skyline’s
Complaint as seeking relief that would ensure that the
Coverage Requirement does not affect Skyline’s ability to
obtain a health plan that comports with its beliefs, whatever
the Requirement’s source in state law. If Skyline were to
prevail, that would mean that its free exercise rights trumped
the DMHC’s authority to require Skyline’s plan to comport
with the Coverage Requirement, regardless of the source of
that authority.
B.
Having concluded that the Article III requirements for
jurisdiction are satisfied for Skyline’s federal free exercise
claim, we move on to prudential ripeness. “Courts have
regularly declined on prudential grounds to review
challenges to recently promulgated laws or regulations in
favor of awaiting an actual application of the new rule.”
Oklevueha Native Am. Church of Haw., Inc. v. Holder,
676 F.3d 829, 837 (9th Cir. 2012). “In evaluating the
prudential aspects of ripeness, our analysis is guided by two
overarching considerations: ‘the fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration.’” Thomas, 220 F.3d at
26 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
1141 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967), abrogated on other grounds by Califano v. Sanders,
430 U.S. 99 (1977)). 9
As to the first prudential ripeness prong, “[a] claim is fit
for decision if the issues raised are primarily legal, do not
require further factual development, and the challenged
action is final.” Stormans, 586 F.3d at 1126 (quoting US
West Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118
(9th Cir. 1999)). Relevant considerations include “whether
the administrative action is a definitive statement of an
agency’s position; whether the action has a direct and
immediate effect on the complaining parties; whether the
action has the status of law; and whether the action requires
immediate compliance with its terms.” Id. (quoting Ass’n of
Am. Med. Colls. v. United States, 217 F.3d 770, 780 (9th Cir.
2000)).
Skyline’s challenge to the Coverage Requirement is fit
for decision now. After the DMHC formalized the Coverage
Requirement by issuing the Letters, there was an immediate
effect upon Skyline: its insurer promptly amended Skyline’s
plan. Indeed, such immediate compliance was required by
the terms of the Letters. And the state statutes and
9
In Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the
Supreme Court “cast doubt on the prudential component of ripeness,”
identifying prudential ripeness as “in some tension” with “the principle
that a federal court’s obligation to hear and decide cases within its
jurisdiction is virtually unflagging.” Clark v. City of Seattle, 899 F.3d
802, 809 n.4 (9th Cir. 2018) (quotation marks omitted) (quoting Susan
B. Anthony List, 573 U.S. at 167). Because the Supreme Court “has not
yet had occasion to ‘resolve the continuing vitality of the prudential
ripeness doctrine,’” we apply it here regardless of any uncertainty about
its life expectancy. See Fowler v. Guerin, 899 F.3d 1112, 1116–18, 1116
n.1 (9th Cir. 2018) (quoting Susan B. Anthony List, 573 U.S. at 167),
cert. denied, 140 S. Ct. 390 (2019).
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 27
constitutional provisions that form the basis for the Coverage
Requirement of course have the status of law. The Letters,
as a further formalization of that requirement, do as well.
See Missionary Guadalupanas of the Holy Spirit Inc. v.
Rouillard, 251 Cal. Rptr. 3d 1, 9 (Ct. App. 2019) (construing
the Letters as a “regulation” under California law), review
and depublication request denied, No. S258380 (Cal.
2019). 10
We acknowledge that it is a somewhat closer question
whether the DMHC’s actions to date amount to a definitive
statement of its position on whether it would approve a
Skyline-tailored insurance plan. The DMHC retains
discretion to create exemptions from the Coverage
Requirement. See Cal. Health & Safety Code §§ 1343(b),
1344(a), 1367(i). It has already granted an exemption once
by allowing Anthem Blue Cross to offer a “religious
employers” plan that excludes abortion coverage except in
cases of rape, incest, or when the pregnant woman’s life is
at risk. And, if asked in the future to approve a plan like the
one Skyline seeks, limiting abortion coverage to cases in
which the pregnant woman’s life is at risk, the DMHC might
10
The plaintiffs in Missionary Guadalupanas brought in state court
a challenge to the Coverage Requirement that focused on whether the
Letters violated the California Administrative Procedure Act. See
251 Cal. Rptr. 3d at 4. There, the trial court ruled in favor of the DMHC,
and the California Court of Appeal affirmed in a published decision,
reasoning that the Letters had reached “the only legally tenable
interpretation” of California law. Id. at 7–12. Because the Court of
Appeal’s decision in Missionary Guadalupanas represents “the ruling of
the highest state court issued to date,” and we have not seen any
“persuasive data” that the California Supreme Court would reach
different conclusions, we are “bound by” that decision to the extent its
interpretation of California law is relevant. See Poublon v. C.H.
Robinson Co., 846 F.3d 1251, 1266–67 (9th Cir. 2017) (quoting Miller
v. County of Santa Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994)).
28 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
agree. The possibility that the DMHC may change course
does not, however, mean that Skyline needed to jump
through more hoops before filing this case—particularly
when the DMHC did not even suggest in the Letters that it
would entertain any exemption requests, or establish a
specific procedure to review any exemption requests.
Moreover, even now, when its litigation position hinges
on the idea that Skyline needed to make a request similar to
the one made by Anthem Blue Cross before suing, the
DMHC insists that Skyline could not request an exemption
on its own, but instead must enlist a willing insurer to make
a request to the DMHC on its behalf. In the DMHC’s view,
then, the only way for Skyline to ripen its claim would be to
persuade a third party to submit a request for a discretionary
exemption—even though there appears to be no established
procedure for doing so—and then wait an unknown amount
of time for a response that may never come, all while
Skyline’s injury remains ongoing.
The DMHC has not identified any case in which a party
that was already injured was required to navigate the type of
ill-defined terrain Skyline would have faced to ripen its
claim in the way the DMHC argues is required, and we have
not found any. To the contrary, our caselaw compels the
conclusion that this case is already prudentially ripe. For
example, in Oklevueha, we addressed a church’s challenge
under the Religious Freedom Restoration Act to the
government’s enforcement of the Controlled Substances
Act. 676 F.3d at 833–34. In that case, federal law-
enforcement officers had, at one point, seized a FedEx
package containing one pound of marijuana that was
intended for the church’s religious uses. Id. at 834. But the
church did not allege that it or its members were prosecuted
following the seizure or had ever been prosecuted in
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 29
connection with the church’s procurement or use of
marijuana. Id. Instead, the church’s allegations were based
on fear of future enforcement of the Controlled Substances
Act through prosecution or further seizures. See id. We held
that this challenge to future enforcement was ripe,
notwithstanding a regulation providing that “[a]ny person
may apply for an exception to the application of any
provision” of the relevant law. See id. at 838 (quoting
21 C.F.R. § 1307.03). The church was not required to apply
for an exception before filing suit because the church had
already suffered a seizure, and it was likely enough that
further enforcement would follow. See id. The same is true
here: Skyline need not make further attempts to persuade the
DMHC to create an exemption from the Coverage
Requirement because the enforcement of that requirement
has already caused injury.
Because Skyline’s federal free exercise claim is fit for
review now, we need not and do not reach the second prong
of the prudential ripeness inquiry—whether delaying review
would impose a hardship on Skyline. “Hardship serves as a
counterbalance to any interest the judiciary has in delaying
consideration of a case,” and here we see no need to delay.
See Oklevueha, 676 F.3d at 838.
C.
For the foregoing reasons, Skyline’s federal free exercise
claim is justiciable. Aspects of our discussion of the
justiciability of that claim may apply equally to Skyline’s
other claims, but the parties have only briefed the merits of
the federal free exercise claim on appeal. In light of the
limited scope of what the parties have told us about the
nature of Skyline’s other claims, we vacate the district
court’s ruling that those claims are not justiciable and
30 SKYLINE WESLEYAN CHURCH V. CAL. DMHC
remand to the district court to reassess the justiciability of
Skyline’s remaining claims in light of our decision.
IV.
Skyline argues that we should not only reverse the
district court’s ruling on justiciability of the federal free
exercise claim but should also resolve it on the merits, rather
than prolonging the litigation by remanding for the district
court to consider the merits in the first instance. We decline
to exercise our equitable discretion to do so.
“In general, an appellate court does not decide issues that
the trial court did not decide.” Planned Parenthood of
Greater Wash. & N. Idaho v. U.S. Dep’t of Health & Human
Servs., 946 F.3d 1100, 1110 (9th Cir. 2020). That “general
rule, however, is flexible—an appellate court can exercise its
equitable discretion to reach an issue in the first instance.”
Id. One of the limited circumstances in which that discretion
is permissible is when the issue not addressed by the trial
court is a “purely legal issue.” Id. at 1110–11.
We recognize that there are some reasons to resolve
Skyline’s federal free exercise claim, which presents such a
purely legal issue, now. In the district court, both parties
filed cross-motions for summary judgment on the merits of
all claims. The parties have now laid out again in their
appellate briefs their positions on the merits of Skyline’s
federal free exercise claim. Whether to grant summary
judgment in favor of either party on that claim is a purely
legal issue that we could resolve by looking to a record that
each party has contended is sufficient to support judgment in
its favor. Skyline urges us to proceed to the merits of its free
exercise claim rather than remanding and thereby
guaranteeing that its claimed injury will persist during the
further litigation.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 31
These considerations may have persuaded us to exercise
our equitable discretion to reach the merits of Skyline’s
federal free exercise claim. But after oral argument in this
appeal, the Supreme Court granted a petition for a writ of
certiorari in which one of the questions presented is
“[w]hether Employment Division v. Smith [494 U.S. 872
(1990)] should be revisited.” See Petition for a Writ of
Certiorari, Fulton v. City of Philadelphia, No. 19-123 (U.S.
July 22, 2019), cert. granted, 140 S. Ct. 1104 (2020).
Skyline’s free exercise claim turns on the application of
Smith and later caselaw implementing its holding. When the
Supreme Court is in the process of considering a legal issue
central to an appeal before us, we typically wait to decide the
appeal until after the Supreme Court has ruled. Doing so
here, however, would also hold up the resolution of
Skyline’s other claims, the merits of which have not even
been briefed to us. The prospect of such delay persuades us
that we should remand the case rather than keeping the entire
action in abeyance for a long period of time.
Accordingly, we remand and leave it to the district court
to determine, after resolving whether Skyline’s other claims
are justiciable, see supra Part III.C, when it would be
appropriate to proceed to the merits of Skyline’s claims for
which there is jurisdiction.
V.
For the foregoing reasons, we reverse the district court’s
ruling that it lacked jurisdiction over Skyline’s federal free
exercise claim, vacate the district court’s ruling that it lacked
jurisdiction over Skyline’s other claims, and remand for
further proceedings consistent with this opinion.
REVERSED IN PART, VACATED IN PART, AND
REMANDED.