GRABER, Circuit Judge:
Plaintiffs Nick Coons and Eric N. Novack brought a facial constitutional challenge to two provisions of the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), as amended by Health Care and Education Reconciliation Act of 2010, Pub.L. No. 111-152, 124 Stat. 1029 ("Affordable Care Act"): the individual mandate, which requires
In March 2010, Congress passed and the President signed into law the Affordable Care Act. The Act establishes a comprehensive regulatory system intended to increase the number of Americans covered by medical insurance and to decrease the cost of medical care. Two of its provisions are at issue in this appeal: the provision commonly known as the individual mandate, 26 U.S.C. § 5000A; and the provision establishing IPAB, 42 U.S.C. § 1395kkk.
The individual mandate is codified in Title 26 of the Internal Revenue Code. 26 U.S.C. § 5000A. The mandate requires all "applicable individuals," id. § 5000A(d), and their dependents to maintain "minimum essential coverage," id. § 5000A(f), for every month beginning in January 2014, id. § 5000A(a). If an individual fails to meet that requirement and does not qualify for an exemption, id. § 5000A(e), the individual must pay a penalty, termed the "shared responsibility payment," with his or her annual income tax return, id. § 5000A(b).
IPAB is a new 15-member administrative board that will monitor the growth of Medicare spending and, if actual growth exceeds projected growth, will develop and submit recommendations to reduce the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare & Medicaid Services. 42 U.S.C. § 1395kkk. The requirement that IPAB issue recommendations for a given year is triggered only if the Chief Actuary determines that actual growth will exceed projected growth in a particular year. Id. § 1395kkk(b). If the Chief Actuary makes that determination, then IPAB is required to recommend measures to reduce growth that the Secretary of Health and Human Services ("Secretary") must implement in the absence of an affirmative veto by Congress.
In August of 2010, Coons and Novack, along with two members of Congress,
Plaintiffs' challenge was one of many similar cases filed nationwide. One such case reached the United States Supreme Court. The Court reviewed the individual mandate and two other provisions expanding Medicaid coverage, 42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII), 1396c, to decide whether the provisions exceeded Article I legislative power under the Commerce Clause, the Spending Clause, or Congress' taxation power. While the Supreme Court's decision was pending, Defendants moved to dismiss all of Plaintiffs' claims, and the parties filed cross-motions for summary judgment. The district court stayed this action pending the Supreme Court's disposition.
In National Federation of Independent Business, the Supreme Court upheld the individual mandate as a proper exercise of Congress' taxation power, 132 S.Ct. at 2600, but struck, as exceeding Spending Clause power, the portion of the Medicaid expansion provision that withdrew all federal Medicaid funding, including funding provided for programs predating the expansion, from states that refused to adopt the expansion, id. at 2606-07. Following that decision, the district court lifted the stay in Plaintiffs' case and granted Defendants' motion to dismiss all claims that challenged the individual mandate for exceeding Article I lawmaking power. The district court also held that the establishment of IPAB did not violate Article I's non-delegation principle. After receiving further briefing, the district court dismissed the remaining claims
Plaintiffs argue on appeal that the district court erred by dismissing their challenge to the establishment of IPAB and their challenge to the individual mandate as violative of Coons' substantive due process rights to medical autonomy and informational privacy and by holding that the Affordable Care Act preempts the Arizona Act. We disagree with their arguments for the reasons that follow.
Novack challenges the establishment of IPAB on the ground that it violates Article I's non-delegation principle. But we first must address the threshold question whether Novack satisfies the demands of Article III for ripeness. The framers of Article III designed the federal courts to act retrospectively and to avoid encroaching, through the issuance of advisory opinions, on the prospective lawmaking role of the legislature. United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947). "For adjudication of constitutional issues, concrete legal issues, presented in actual cases, not abstractions, are requisite." Id. (internal quotation marks omitted). This requirement has led to the doctrine of ripeness, which contains "both a constitutional and a prudential component." Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir.1993). The constitutional component derives from Article III and, if it is not satisfied, we lack jurisdiction to reach the merits of a dispute. Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc).
"The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong." Id. at 1138. When addressing the sufficiency of a showing of injury-in-fact grounded in potential future harms, Article III standing and ripeness issues often "boil down to the same question." Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2341 n. 5, 189 L.Ed.2d 246 (2014) (internal quotation marks omitted). In that context, "ripeness can be characterized as standing on a timeline," and the analysis for both standing and ripeness is essentially the same. Thomas, 220 F.3d at 1138.
"In assuring that this jurisdictional prerequisite is satisfied, we consider whether the plaintiffs face a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement." Id. at 1139 (internal quotation marks omitted). A plaintiff's "injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is certainly impending. Thus, we have repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient." Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (citations, internal quotation marks, and brackets omitted).
Novack alleges that the establishment of IPAB will certainly harm him in the future because he is an orthopedic surgeon and manages a surgery practice in
Although it is possible that some future IPAB action might harm Novack, his allegations of future financial harm are highly speculative and are not certainly impending. Clapper, 133 S.Ct. at 1147. The Affordable Care Act does provide that — if the Chief Actuary makes the requisite finding — IPAB will have the discretion to recommend reduced reimbursement rates to providers, 42 U.S.C. § 1395kkk(c)(2)(A)(iv), but IPAB is prohibited from recommending a reduction until January 1, 2019, id. § 1395kkk(c)(2)(A)(iii). Novack's allegations that, because IPAB is authorized to reduce and not increase reimbursement rates, "the statute is imminently likely to decrease his reimbursements for services that he renders to Medicare patients, and otherwise affects his practice," are exactly the kinds of "allegations of possible future injury" that the Supreme Court has held are insufficient to establish injury-in-fact. Clapper, 133 S.Ct. at 1147. Speculative allegations with respect to a potential future reduction in Medicare reimbursement rates that are "wholly contingent upon the occurrence of unforeseeable events" are insufficient to satisfy the constitutional prong of our ripeness doctrine. Thomas, 220 F.3d at 1141. Accordingly, Novack's challenge to IPAB grounded on the contention that IPAB could exercise its discretion to recommend reduction in reimbursement rates some time after 2019, thereby causing him injury, is unripe.
Novack's challenge to IPAB predicated on a market displacement theory of injury-in-fact is equally unripe. In particular, Novack cites allegations in the complaint that, "if [IPAB's speculated reductions in reimbursement rates] are anticipated to become law," health care providers and the market might react negatively. (Emphasis added.) Those allegations are insufficient to establish standing under the market displacement theory of injury-in-fact. See Barnum Timber Co. v. EPA, 633 F.3d 894, 900-01 (9th Cir.2011). Unlike the plaintiff in Barnum, who alleged that EPA regulations on one property had already affected the market and had already reduced the market value of plaintiff's property, id. at 901, Novack alleges only speculative future market displacement that is contingent on a series of events, including IPAB action, that has not yet occurred and may never occur. Such speculative alleged injuries present a dispute that is "not justiciable, because it is not ripe for court review." Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). Moreover, Novack does not allege that he actually has suffered financial harm from the alleged market forces.
In sum, Novack's allegations of future injury are too speculative to satisfy the constitutional requirement of ripeness.
Coons challenges the individual mandate on the ground that it violates his right to substantive due process provided by the Fifth and Ninth Amendments. He argues that the mandate burdens directly his rights to medical autonomy and informational privacy and, in the alternative, burdens his informational privacy right indirectly by conditioning the exercise of his right not to share his private medical information on a requirement that he pay a penalty.
The Supreme Court has recognized fundamental rights to determine one's own medical treatment, Cruzan ex rel. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), and to refuse unwanted medical treatment, Washington v. Glucksberg, 521 U.S. 702, 724, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and has recognized a fundamental liberty interest in medical autonomy, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Coons contends that the individual mandate unduly burdens his right to medical autonomy by "forcing him to apply limited financial resources to obtaining a health care plan he does not desire or forcing him to save his income and pay a penalty" and by "forcing him to create or risk creating an intimate relationship concerning his health and medical care with millions of non-physician intermediaries employed by health insurers, rather than directly with the physician of his choice."
In order to determine whether the individual mandate implicates Coons' rights to medical autonomy, we must examine what the individual mandate actually requires. The Affordable Care Act provides that an individual must obtain from any source, public or private, medical insurance that meets statutory minimums of coverage, 26 U.S.C. § 5000A(a); or must pay a penalty, in the form of a tax, id. § 5000A(b). The individual mandate does not require that an individual select a particular insurance plan, does not require that the individual use an insurance plan once purchased, and does not restrict an individual's right to contract for care directly with the physician of his or her choosing.
The fact that the individual mandate forces Coons to expend funds on either medical insurance or a penalty implicates Plaintiff's economic interests only — a substantive due process right abandoned long ago by the Supreme Court. See Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963) ("The doctrine that prevailed in Lochner [v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) ], Coppage [v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915) ], Adkins [v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923) ], [Jay] Burns [Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 (1924) ], and like cases — that due process authorizes courts to hold laws unconstitutional when they believe
We thus join the Sixth Circuit in upholding the individual mandate against a substantive due process challenge grounded in medical autonomy. U.S. Citizens Ass'n v. Sebelius, 705 F.3d 588 (6th Cir.2013).
The Supreme Court has recognized a fundamental privacy right in non-disclosure of personal medical information. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). But, "the right to informational privacy is not absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest." Tucson Woman's Clinic v. Eden, 379 F.3d 531, 551 (9th Cir.2004) (internal quotation marks omitted). In order "to determine whether the governmental interest in obtaining information outweighs the individual's privacy interest," we weigh the following factors: "(1) the type of information requested, (2) the potential for harm in any subsequent non-consensual disclosure, (3) the adequacy of safeguards to prevent unauthorized disclosure, (4) the degree of the need for access, and (5) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access." Id. at 551.
Coons contends that the individual mandate burdens impermissibly his fundamental right to privacy in his medical information by requiring him to provide medical information to third-party insurance providers. He speculates that insurers will "solicit sensitive information from customers" in order to set risk premiums. He also asserts that such a disclosure would make his medical information available for warrantless government seizure. But Coons has not alleged that he has applied for medical insurance or that any third party has requested that he disclose his medical information as a condition precedent to obtaining the minimum required coverage.
Because Coons' challenge would require evaluating a speculative intrusion, his challenge is prudentially unripe.
Finally, Plaintiffs appeal the district court's holding that the Affordable Care Act preempts the Arizona Act. We evaluate under the Supremacy Clause, U.S. Const. art. VI, cl. 2, whether the Arizona Act, as a state law, is displaced by the Federal Affordable Care Act.
In November of 2010, eight months after the Affordable Care Act became law, Arizona voters amended their state constitution through the Arizona Act to provide, in pertinent part:
Ariz. Const. art. XXVII, § 2.
"The question whether a certain state action is pre-empted by federal law is one of congressional intent. The purpose of Congress is the ultimate touchstone." Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (internal quotation marks and brackets omitted).
The Affordable Care Act presents a classic case of preemption by implication because the Arizona Act "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 98, 112 S.Ct. 2374 (internal quotation marks omitted). The Supreme Court has recognized that the individual mandate is a proper exercise of Congress' Article I taxing power, Nat'l Fed'n of Indep. Bus., 132 S.Ct. at 2600, and we affirm the constitutionality of the Affordable Care Act again today. The Arizona Act provides that its citizens may forego minimum health insurance coverage and abstain from paying any penalties, Ariz. Const. art. XXVII, § 2, which is exactly what the individual mandate requires. The Arizona Act thereby stands as an obstacle to Congress' objective to expand minimum essential health coverage nationwide through the individual mandate, 26 U.S.C. § 5000A, and is, therefore, preempted under the Supremacy Clause. See Gade, 505 U.S. at 103, 112 S.Ct. 2374 ("A state law ... is preempted if it interferes with the methods by which the federal statute was designed to reach [its] goal." (internal quotation marks omitted)).
We affirm the district court's holding that the individual mandate does not violate Plaintiff Coons' substantive due process right to medical autonomy, and we affirm the dismissal, for lack of ripeness, of Coons' challenge to the individual mandate for violation of his substantive due process right to informational privacy. We also affirm the district court's holding that the Affordable Care Act preempts the Arizona Act. Finally, with respect to Plaintiff Novack's challenge to IPAB, we vacate the district court's decision on the merits of the claim and remand with instructions to dismiss it for lack of jurisdiction.