F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N I C K C O O

N S ; and E R

I C N

. N O V

A C K , M.D., Plaintiffs-Appellants
,

v

.

J A C O B L

. L E W , in his official capacity as Secretary of the United States Department of the Treasury ; K A T H L E E N S E B E L I U S , in her official capacity as Secretary of the United States Department of Health and Human Services; E R

I C H. H O L D E R , J R ., Attorney

General, in his official capacity as Attorney

General of the United States; and B A R A C K H U S S E I

N O B A M A , in his official capacity

as President of the United States,

Defendants-Appellees

. N o. 13-15324

D.C. No. 2:10-cv-01714- GMS

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na G. Murray Snow, District J u dg e, Presiding

Arg ued and Submitted J une 10, 2014—San F rancisco, California

F iled Aug ust 7, 2014C O O N S V

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2

B efore: Mary

M. Schroeder, Susan P. Graber, and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e Graber

SUMMARY *

P atient P r otection and Af f ordable Care Act

The panel affirmed in part a n d vacated in part the district court’s judg ment in favor of f ederal officials in a case broug ht by two Ariz ona citiz ens alleg ing a facial constitutional challeng e to two provisions of the P atient Protection and Af

fo r d a b le Care Act, and seeking a decl a r a t i o n c o n cerning the Ariz ona Health Care F reedom Act.

The panel affirmed the d istrict court’s holding that t h e A f f ordable Care Act’s individual mandate, which requires that individuals maintain a minimum level of health ins u rance coverage o r pay a penalty
, did not violate a plaintiff’s substantive due proces s r ig ht to medical autonomy

. The panel also affirmed the dismissal, f o r lack of ripeness, o f a plaintiff’s c halleng e to the individual mandate f or a violation of his substantive due process rig hts to informational privacy

. The panel als o affirmed the district court’s holding that the Affordable Care Act p reempted the Ariz ona He a l t h Care F reedom Act, which a mend e d t he Ariz ona constitution to make it lawful to abstain from purchasing h e a l t h insurance without p ay ing any penalty

. F inally
, w i th respect to a

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O O N S V

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plaintiff’s challenge to the I ndependent Pay ment A dvisory B oard, w hich is a new a d v i s ory board charg ed with issuing budg et recommendations for the Medicare pro gram in the
event that the prog ram e x ceeded g r o wth projections, the panel vacated the district c ou rt’s d ecision on the merits a nd remanded with instructions to d ismiss for lack of jurisdiction.

COUNSEL

Christina Sandefur (arg

ued), Clint B olick, Kurt Altman, a nd Nicholas C. D ranias, Goldwater I nstitute, Phoenix
, Ariz ona, for Plaintiffs-Appellants.

J effrey E. Sandberg ( arg ued), D ana Kaersvang , and Alisa B

. Klein, Attorney s, J ohn S. L eonardo, United States Attorney
, and Stuart F

. Delery
, Acting Assistant A t t o r n ey General, Civil D i v i sion, United States Department of J ustice, W a shing ton, D.C., for Defendants-Appellees.

Timo thy Sandefur, Pacific L eg al F o undation, Sacramento, California, for Amici Curiae.

OP INION

GRAB ER, Circuit J udg e:

Plaintiffs Nick Coons a

nd Eric N. Novack broug ht a facial constit u t ional challeng e to two p rovisions of the Patient Protection and Affordable Care Act
, Pub. L

. No. 111-148, 124 Stat. 119 (2010), as amended by Health Care a nd Education Reconciliation Act o f 2010, Pub. L

. No. 111-152, 124 Stat. 1029 (“Affor d a b l e Care Act”): the individualC O O N S V

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4

mandate, which requires that individu a l s m a i n t a i n a minimum level o f hea l t h i nsurance coverag e o r pay a penalty ; a nd the establishment of t h e I ndependent Pay ment A dvisory B oard (“I PAB ”), a new advisory board charg e d with issuing b udg et recommendations for the Medicare prog ram in the event that
t h e prog ram ex ceeds g rowth projections. Plaintiffs a lso
soug h t a declaration that t h e Ariz o na Health Care F reedom Act (“Ariz o n a Act”), which amends the Ariz ona constitution
to make it lawful to abstain from purchasing h ealth insurance without p a y i n g any penalty
, is not preempted by the Affordable Care Act. After the Supreme Court issued National Federatio n o

f Independent Business v. Sebelius
, 132 S. Ct. 2566 (2012), the district c o urt dismissed Plaintiffs’ claims and e n t e r ed judg ment for Defendants Timothy Geithner, K athleen Sebelius, Eric H o l d e r, J r., and B arack Hussein Obama, in their o fficial capacities. Reviewing de
novo, Stout v. FreeScore, LLC
, 743 F .3d 680, 68 4 (9th Cir. 2014); Demers v. Austin , 746 F .3d 402, 409 (9th Cir. 2014),

w e a ffirm in part, and in part vacate and remand with instructions to dismiss for lack of jurisdiction.

BACK G ROUND

I n March 2 010, Cong ress passed and the President sig n ed i n t o l a w the Affordable Care Act. The Act establishes a comp re h e nsive reg ulatory sy stem intended to increase the number of Americans covered b y medical insurance and to decrease the c ost of medical care. Two of its provi sions a re at issue in this appeal: the provision commonly known as the individual manda t e , 26 U .S.C. § 5000A; and the provision establishing I PAB
, 42 U.S.C. § 1395kkk.

The individual mandat e i s codified in Title 26 o f the I nterna l R e v e nue Code. 26 U.S.C. § 5000A. The mandateC O O N S V

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r e quires all “applicable individuals,” id. § 5000A(d), and their dependents to maintain “minimum essential co v e r ag e,” id. § 5000A(f), for e very month beg inning in J anuary 2014, id. § 5 0 00A(a). I f an individual fails to meet that r equirement and d oes not q

ualify for an ex emption, id. § 5000A(e)
, t h e individual must pay a p enalty
, termed the “shared responsibility pay

ment,” with his or her annual inc o m e tax return, id. § 5000A(b).

I PAB is a new 15-member administrative board that will monitor the g rowth of Medicare spending and, if actual
g rowth ex ceeds pro

j e c ted g r owth, will develop and submit recommendations to reduce the g r o wth rate to the “saving s targ e t” set by the Chief Actuary of the Centers for Medicare & Medic a i d Services. 42 U.S.C. § 1 395kkk. The requirement that I PAB issue r ecommendations for a g iven
y ear is trig g ered only if the Chief Actuary dete r m i n e s that actual g rowth will ex ceed projected g row t h in a particular
y ear. Id. § 1395kkk(b). I f the Chief A c t u a r y makes that determination, then I PAB is required t o recommend measures to reduce g rowth that the Secretary of Health and H u man Services (“Secretary

”) must implemen t i n the absence of an affirmative veto by Cong ress. 1 Id. I f I PAB fails to make the required recommendations for a g iven y ear, for lack o f membership or otherwise, its duties fall to the Secretary

. Id. § 1 3 9 5 k k k ( c ) ( 5 )

. O n c e I P A B c o m p l e t e s i t s

recomme n dations, it must submit them to Cong ress a nd the President. Id. § 1395kkk(c)(3 )

. I f instead the Secretary completes the recommendations, the Secretary must submit them to the President, who must in turn submit the proposal
to Cong r ess within two d ay s. Id. § 1 395kkk(c)(4)–(5). The

1 IP A B also h as th e a u

th o rity
, at i ts d iscretio n , to m ak e n o n

- b in d in g , ad v iso ry p ro p o sals to Co n g ress. 4 2 U.S.C. § 1 39 5 k k k (c).C O O N S V

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6

scheme then provides, throug h c ong ressional rulemaking
power, id. § 1395kkk(d)(5), detailed p r ocedu r e s b y which Cong r es s m u s t e i t h e r c o n s i d e r a n d v o t e o n the recommendations or p ass superseding leg islation, id. § 1395kkk(d). I n the absence o f superseding leg islation, id. § 1395kkk(e)(3)(A)(i), the Secre tary must implement the recommendations as s u

b m i tted to Cong ress and the President, id. § 1395kkk(e)(1).

I n A ug us t of 2010, Coons and Novack, along with two members of Cong ress, 2 fil ed a n omnibus facial challeng e to the Affordable Care Act in the U nited States District Court for the District of Ariz ona. Coons is a citiz en of Ariz o na, is
not ex e mpt f

r o m t h e Affordable Care Act, does not have private medical insurance, a n d d o e s not want to purchase private medical insurance or share his p rivate medical history with third parties. Novack is a cit i z e n o f A r iz ona and a phy sician who manag es a surg ery practice that cares for patients, 12.5% of whom receive care funde d b y M edicare reimbursements. Plaintiffs challeng e the individual mandate and the establishment o f I PAB on several theories, including claims that those provisions: violat e their constitutional righ t s ; e x ceed Article I leg islative power under the Commerce Clause, Necessary a nd Proper Clause, Spending C l a u se, and tax ation power; and violate Article I ’s nond e l e g a tion principle. Plaintiffs also seek a declaration that the Ariz ona Act is n ot preempted b y the Affordable Care Act.

2 T h e seco n d am en d ed co m p lain t in clu d ed C o o n s, No v ack
, an d Un ited States H o u se of Rep resen tativ es m em b ers Jef f Flak e an d T ren t Fran k s as p lain tif f s. B u t Rep resen tativ es Flak e an d Fran k s d id n o t ap p eal. Un less

o th erw i se sp ecif

i ed
, th eref

o re, “ P l ain t if

f s” ref ers to C o o n s an d No v ack

o n ly

.C O O N S V

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Plaintiffs’ challeng e was one of many similar cases filed nationwide. One such case reach e d t he U nited States Supreme Court. The Court r eviewed the individual mandate and two other p rovisions ex panding Medicaid c overag e , 42 U.S.C. §§ 1396a(a)(10)(A )( i)(VI I I ), 1396c, to decide whether the provisions e x c e e d ed Article I leg islative power under t h e Commerce Clause, the Spending Clause, o r Cong r ess’ tax ation p ower. W hile the Supreme C o u r t ’s decision w as p ending
, Defendants moved to dismiss all o f Plaintiffs’ claims, and the parties filed cross-motions for
summary judg men t

. T he district court stay e d this action pending the Supreme Court’s disposition.

I n National Federation of Independent Business
, the Supreme Court upheld t h e individual mandate as a proper

ex e r cise of Cong ress’ tax ation power, 132 S. Ct. at 2600, but struck, a s ex ceeding Spending Clause powe r , the portion o f the Medicare ex p ansion provision that wi t h d r ew all federal Medicare funding
, including funding provided for prog rams predating the ex pansion, from states that refused to adopt the

ex p ansion, id. at 2606–07. F o llowing that de c i sion, the district court lifted the stay in Pl a intiffs’ case and g ranted Defendants’ motion to dismiss all claims that challeng ed the individual mandate for e x ceeding Article I lawmaking power. The district court also held that the establishment of I PAB did
not v i o l ate Article I ’ s non-deleg ation principle. After receivi n g further b riefing
, the district court dismissed the remaining c laims 3 a

nd entered final judg ment for Defendants.

3 A f ter th e Su prem e Co u rt issu ed its d ecisio n in Neva d a Co mmissio n o n Eth ics v. Ca rrig a n , 1 3 1 S

. Ct. 23 4 3 (2 0 1 1 ), P lain tif f s v o lu n tarily d ism issed co u n t six o f th eir co m p l ain t, w h ich ch allen g ed f

eatu res o f th e A f f o rd ab l e Care Act as v io lativ e o f P lain tif f s Flak e an d Fran k s’ First A m en d m en t rig h ts.C O O N S V

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8

Plaintiffs Coons and Novack timely appeal e d
, a nd we have jurisdiction under 28 U.S.C. § 1291.

D ISCUSSION

Plaintiffs arg ue on ap p e al that the district court erred b y dismissing their challeng e to the establishment of I PAB a nd their challeng e to the individual mandate as violative o f Coons’ substantive due proce s s rig hts to medical a utonomy and informational p rivacy and by holding that the Affordable Care Act preempts the Ariz o na Act. W e disag ree w ith their
arg uments for the reasons that follow.

A. Article I Non-Delegation Challenge

Novack challeng es the establishment of I PA B on the
g round t h a t it violates A rticle I ’s non-deleg ation principle. B ut we first must address the thresh o l d question whether Novack satisfies the d emands o f Article I I I for ripeness. The framers of Article I I I d esig ned the fed e r al courts to act retrospectively and t o avoid encroaching
, throug h the issuance of advisory opinions, on the p rospective lawmaking role of the leg islature. United Pub. W orkers of Am. (

C.I.O.)

v. Mitchell
, 330 U.S. 7 5, 8 9 (1947). “F or adjudication o f constitution a l i s s ues, c o ncrete leg al issues, presented in actual
cases, n ot a

bstractions, are requisite.” Id. (internal quotation marks o m i t t e d ). This requirement has led to the doctrine o f ripeness, which contains “bot h a constitutional and a prudential component.” Portman v. County of San ta Clara
, 995 F

. 2d 898, 90 2 ( 9 th Cir. 1993). The constitutional
compo n e n t derives from Article I I I and, if it is not satisfied,

we lack jurisdiction to reach the merits o f a dispute. Thomas

v. Anchorage Equal Ri

g hts Comm’n
, 220 F .3d 1134, 1139 (9th Cir. 2000) (en banc).C O O N S V

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“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 f a ct prong .” Id. at 1138. W hen a d d r e s s i n g the sufficiency of a showing of injury -in-fact g rounded in p otential future harms, Article I I I standing and ripeness issues often “boil d o wn to the same q

uestion.” Susan B

. Anthony L ist v. D riehaus
, 134 S. Ct. 2 334, 2341 n.5 (2014) (internal quotati o n marks

om i t t ed )

. I n that contex t, “ripeness can be characteriz ed a s standing o n a t i meline,” and the analy sis for both standing and ripeness is e ssentially the same. Thomas
, 2 2 0 F. 3d at 1138.

“I n assuring that this jurisdictional prerequisite is satisfied, we consider w hether the pl ai ntiffs face a realistic dang er of sustaining direct injury as a resu l t of the statute’s operation or enforcement.” Id. at 1139 (interna l q u otation marks omitted). A plaintiff’s “inju r y must be concrete, particulariz ed, and actual or imminent; fairly traceable to the challeng ed action; and redressable by a f avorable ruling

. A lthoug h imminence is concededly a somewhat e last i c concept, it cannot be stretched b e y o n d its purpose, which is
to ensure that the a lleg ed i n j u r y i s not too speculative for Article I I I purposes—t h at the injury is certainly impending

. Thus, we have repeatedly reiterat e d that threatened injury
must b e certainly impending to constitute injury in fact, a nd that alleg a tions o f possible f uture injury are no t s u f

ficient.” Clapper v. Amnesty Int’l USA
, 133 S. Ct. 1138, 1147 (2013) (citations, internal quotation marks, and brackets omitted).

Novack alleg es that the establishment of I PAB will certainly harm him in the future because he is an orthopedic
surg eon and manag es a surg ery practic e i n A r iz ona that receives 12.5% o f its patient c are pay ments from Medi c a reC O O N S V

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10

reimbursements. He a r g ues that, because I PAB is empowered to make recommendation s on reimbursement rates, 42 U.S.C. § 1 3 95kkk(c)(2)(A)(iv), his challeng e is ripe because he will suffer financial harm as a result of I PAB ’s recommendations. Novack a rg ues, in the alternative, that the establ i s h m e nt o f I PAB will set in motion market displacements tha t w ill harm him financially
, which he contends is sufficient to satisfy Article I I I

. Althoug h it is p o ssible that some future I PAB action mig ht harm Novack, his alleg a tions of future financial harm

are h igh ly speculative and are not certainly impending

. Clapper
, 1 33 S. Ct. at 1147. The Affordable C a r e Act does provide t h a t—if the Chief Actuary makes the requisite finding —I PAB will have the discretion to recommend reduced reimbursement rates to prov i d e rs, 4 2 U .S.C. § 1395kkk(c)(2)(A)(iv), but I PAB is prohibited f r o m recommendi n g a reduction until J anuary 1, 2 019, id. § 1395kkk(c)(2)(A)(iii). Novack’s alleg ations that, because I PAB is authoriz ed to r educe and not increase reimbursement rates, “the statute is imminently likely to decrease his

re i m b u rsements for services that he r enders to Medicare patients, and otherwise aff e c t s his practice,” are ex actly the kinds o f “ alleg ations o f possible future injury ” that the Supreme Court has held a

re insufficient to establish injury

- infact. Clapp e r , 1 3 3 S. Ct. at 1147. Speculative alleg ations with re s p e ct to a potential f uture reduction in Medicare reimbursement rates that are “wholly conting ent upon the

occurrence of unforeseeable events” are insufficient to satisfy the constitutional prong of o ur ripeness doctrine. Thomas
, 220 F .3d a t 1141. According ly
, N ovack’s challeng e to I PAB
g rounded on the contention that I PAB could ex e rcise its discretion to recommend r e d u c tion in r eimbursement rates some time after 2019, thereby causing him injury , is unripe.C O O N S V

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Novack’s challeng e to I PAB predicated on a m a rket displacement theory of injury

- in-fact is equally unripe. I n particular, Novack c ites alleg a tions in the complaint that, “ if [ I PAB ’s speculated redu c tions in reimbursement rates] a re anticipated to become la w , ” h ealth care providers and the

m a r k e t m ight react neg atively

. (Emphasis added.) Those alleg ations are insufficient to establish stand i n g under the market displacement theory o f injury -in-fact. See B a rnum Timber Co

. v

. EPA
, 633 F .3d 894, 900–01 (9th Cir. 2011). Unlike the plain t i f

f in B arnum , who alleg ed that EPA
reg ulat ions on one property had already affected the market and h a d a l r e ady reduced the market value of plaintiff’s property , id. a t 9 01, Novack alleg e s only speculative future market displacement that is conting e nt on a series of events, including I PAB action, that h a s n ot y et occurred and may

never occur. Such speculative alle ge d injuries present a dispute that is “not justiciable, because it is not r ipe for court review.” Ohio Forestry Ass’n v. Sierra Club , 523 U.S. 726, 7 3 2 ( 1 9 9 8). Moreover, N ovack does not alleg e that he actually has suffered financial harm from the alleg ed market forces.

I n sum, Novack’s alleg ations of f utur e i n jury are too

s p e culative to satisfy the constitutional requirement o f ripeness. 4 The district c ourt, therefore, lacked jurisdiction to

4 No v ack arg u es, in t

h e altern ativ e, t

h at h e h as s u f

f ered an in j u ry

- in

- f act sim p ly b y v i r t u e o f b ein g su b j ect to th e j u risd ictio n o f th e IP A B. T h e Su p rem e Co u rt h as h el d t h at, i n certain circu m stan ces, m erely b ein g

su b j ect t o th e j u risd ictio n o f a g o v ern m en t al en tity estab lish ed i n v io latio n

o f th e Co n stitu

tio n co n f ers A rticle III stan d in g

. S ee Bu ckley v. Va leo
, 4 2 4 U.S. 1
, 1 1 7

– 1 8 (1 9 7 6 ) (p er cu ri a m )

. B u t IP A B h as n o j u risd ictio n

o v er No v ack o r h is p ractice o f m ed icin e. No v ack ’ s alleg atio n s th at h is f in an cial in t erests w ill b e af f ected in d irectly b y IP A B ’ s f u tu re reg u lato ry actio n s d o n o t su f

f ice to ren d er No v ack

su b j ect to IP A B ’ s j u risd ictio n

.C O O N S V

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12

adjudicate the me r i t s of N ovack’s challeng e to the establishment of I PAB

. According l y , we vacate the district court’s judg ment on this claim and r emand with instructions to dismiss the claim for lack of jurisdiction.

B. Substantive Due P rocess and the Individual M andate

Coons ch alleng es the individual mandate on the g r ound that it violates his rig ht to substantive due p r ocess provided by the F ifth and N inth A mendments. He arg ues that the mandate burdens directly his rig hts to medical autonomy a nd informational privacy and, in the alternative, b u rdens his informational privacy rig ht indirectly by con d i t ioning the

ex e r cise of his rig ht n ot to share his private medical information on a requirement that he pay a penalty

.

1. Medical Autonom y

The Supreme Court has recog niz ed fundamental rig hts to determine o n e ’ s own medical treatment, Cruzan ex rel. Cruzan v. D ir., Mo. Dep’t of H ealth
, 497 U.S. 261, 278 (1990)
, a nd to refuse unwanted medical treatment, W ashington v. Glucksberg
, 521 U.S. 7 02, 724 (1997), a nd has
recog niz ed a fundamental liberty interest in medical autonomy , P lanned Parenthood of Se. Pa. v. Casey
, 505 U.S. 833, 851 (1992). Coons contends that the individual mandate unduly b u rd ens his rig ht to medical autonomy by “forcing him to apply limited financial resources to obtaining a health

care plan he d oes not desire or f orcing him to save his income and pay a penalt y ” a n d b y “forcing him to create or risk creati n g an intimate relationship c oncerning his health a nd medical care w ith millions o f non-phy sician intermediaries employ e d by health insure rs, rather than d irectly with the phy sician of his choice.”C O O N S V

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I n order to determine whether the individual mandate implica t e s Coons’ rig hts to medical a utonomy , we must

ex a mine 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 s t a tutory minimums of coverag e, 26 U .S.C. § 5000A(a); or must pay a penalty
, in the form o f a t ax , i d. § 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 p lan once purchased, a nd does not restrict an indivi d u al’s rig ht to contract f or care directly with the phy sician of his or her choosing

.

The fact that the individual mandate forces Coons to

ex p end funds on ei t h e r medical insurance or a penalty implicates Plaintiff’s economic interests only —a substantive due process rig ht abandoned long a g o by the Supreme Court. See Ferguson v. Skrupa
, 372 U.S. 726, 730 (1963) (“The doctrine that prevailed in Lochner
, Coppage
, Adkins
, Burns
, and like c ases—that due process authori z e s courts to hold laws unconstitutional when they beli e v e the leg islature has acted unwisely

—has long since been discarded.”). As n oted, contrary to Coons’ contentions, the individual mandate does
not force him into an intimate relati o n s h i p w ith an i n t e rm e diary insurer or preclude the doctor-patien t relationship of his choice. He remains free to obtain medical insurance of his own choosing

— or to obtain no insurance, but
at a financial cost—and to use or not use any such insurance in selecting future doctor-patient relationships. To the ex tent that Coons simply wishes to remain uninsured and free from the mandatory pay

m e nt, the Supreme Court no long er recog niz es such a rig ht as fundamental.C O O N S V

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14

W e thus join the Six th Circuit in upholding the individual mandate ag ainst a substantive due process challeng e g rounded in medi c a l a u tonomy

. U.S. Citizens Ass’n v

. Sebelius , 705 F .3d 588 (6th Cir. 2013).

2. Inf orm ational P rivacy

The Supreme Court has re c og niz ed a f undamental privacy rig ht in non-disclosure of personal medical information. W halen v. Roe , 429 U.S. 589, 599 (1977). B ut, “ the rig ht to informational privacy is not absolute; r ather
, i t is a conditional rig ht which may be infring ed upon a showing of
proper g overnmental i n t e re st.” Tucson W oman’s Clinic v

. Eden
, 379 F .3d 531, 551 (9th Cir. 2004) (internal quotation marks omitted). I n o r der “to determine whether the
g overnmental interest in o btaining information outweig hs the individual’s privacy interest,” w e w e i g h t h e following factors:

“ ( 1 ) the ty

pe of information requested, (2) the potential for harm in any subsequent non-consensual d i s c losure, (3) the adequacy of safeg

u ards to prevent unau t h o riz ed disclosure, (4) the deg ree of the need for access, a nd (5) whether there is

an ex press statutory mandate, art i c u lated public policy
, o r other recog

niz able public interest militating toward access.” Id. at 551.

Coons contends that the individual mandate burdens impermissibly his fundamental rig ht 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” i n o r der
to set r isk premiums. He also a s serts that such a disclosure would make his medical information availab l e f o r warrantless
g overnment seiz ure. B ut Coons has not alleg ed that he has

a p p lied for medical insurance o r that any third party h a sC O O N S V

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request e d that h e disclose his medical information as a condition precedent to obtaining the minimum r equired
coverag e. 5 Those omissions f rustrate our ability to w eig h the relevant factors delineated in Tucson W oman’s Clinic

.

B e cause Coons’ challeng e would require evaluating a speculative intru s i o n , his challeng e is prudentially unripe. 6 S ee S an Luis & Delta-Mendota W ater Auth. v. Sa l a z a r , 638 F .3d 1163, 1173 (9th Cir. 2011). The Supreme Court has held that prudential ripeness depends o n two factors: “the fitness of the issues f

or judicial decision and the h ardship to the parties of withholding c ourt consideration.” Abbott Labs.

v. Gardner
, 3 87 U.S. 136, 149 (1967). Here, as noted, Coons has not alleg e d that any third party has soug h t private medical information. B ecause we have no way to know who mig ht seek what kind of information, further fac t u al development

w o uld “‘sig n ificantly advance [ o ur] ability to deal with t h e leg al issues presented.’” S an Luis & D elta-Mendota W ater Auth.
, 6 38 F .3d at 1173 (quoting Nat’l Park Hospitality Ass’n

v. D e p’t of Interior
, 5 38 U.S. 803, 812 ( 2 0 03)). Moreover, Coons does not contend that he is cur r en tly at risk of being forced to disclose information pr o tected by his substantive due process rig ht, so a holding of u nripeness would work no hardship ag ainst him. J udicial resolution of this issue should await a concrete dispute. W e hold, therefore, that the district

5 In d eed
, at o r a l a r g u m en t, co u n sel rep resen ted th at Co o n s h as n o in ten tio n o f o btain in g in su

ran ce.

6 B ecau se Co o n s’ u n co n stitu tio n al co n d i tio n s claim also rests o n th e

c o n t e n t i o n th at t

h e pen alty co n s titu tes an u n d u e b u rd en o n h is ab i lity to

ex ercise h i s i n f

o rm atio n al p riv acy rig h ts, th at ch allen g e, to o , is
p ru d en tially

u n rip e.C O O N S V

. L E W

16

court did n ot err in declining to reach the merits of Coons’ informational privacy claim for lack of ripeness. 7

C. P reem ption

F inally
, Plaintiffs appeal the district court’s hold i n g that
t h e Affordable Care Act preempts the Ariz ona Act. W e evaluate under the Supremacy Clause, U.S. Const. art. VI
, c l. 2, w hether the Ariz ona Act, as a state law, is displaced by the F ederal Affordable Care Act.

I n November of 2010, eig h t months after the Affordable Care Act bec am e l a w , Ariz ona voters amended their state constitution throug h the Ariz ona Act to p rovide, in pertinent part:

A

. To preserve the freedom o f

Ariz onans to provide for their he a l th

care:

1. A law or r

ule shall not compel, directly o r indirectly
, any person, employ er or health care provider t o participate in any h e a lth care sy stem.

2. A person or employ e r may pay directly for lawful health care services and s h all not be r equired to pay

7 P lain tif f s d i d n o t ask th e d istrict co u rt f o r l eav e to am en d
, n o r h av e th ey arg u ed o n ap p eal t

h at th e d istrict co u rt erred in d ism i ssin g th eir claim

w ith o u t af

f o rd in g th em

leav e to am en d th eir seco n d am en d ed co m p lain t. T h eref ore, th e d istrict co u rt d id n o t err in d i sm issin g P lain tif f s’ claim s

w ith o u t leav e to am en d

.C O O N S V

. L E W 17

penalties or fines for pay ing dir e ctly for lawful health c a

re services. A health c are provider may accept direct
pa y m ent for lawful health care services and shall n o t be required to pay penalties or fines f

o r a ccepting direct pay

ment from a person or employ er for lawful hea l th care services.

B

. Subject to rea sonable and

n e c e s s a r y r u l e s t h a t d o n o t subst antially limit a person’s options, the purchase o r sale of health insurance in p rivate health care sy stems shall not be prohibited by law or rule.

C. This section does not:

. . . .

4. Affect laws or rules in effect as of J anuary

1, 2009.

5. Affect t h e terms o r conditions of any health care sy stem to the ex tent that those terms and conditions do not hav e the e f

fect of punishing a person

or employ er for pay ing directly for lawful health care services or a health

care provider or hospital f or a ccepting direct pay

ment from a person orC O O N S V

. L E W

18

employ er for lawful heal t h care

services.

D. F or the purposes o f this section:

. . . .

5. “ Penalties or fines” means any civil or criminal penalty or fine, tax , sala r y o r wag e withholding or surcharg e o r any named fee with similar effect e stablis h e d by law or rule by a g overnment establ i s hed, created or controlled ag ency that is used to punish or discourag e the

ex e rcise of r ig hts protected under this section.

Ariz . Const. art. XXVI I , § 2.

“The question whether a certain state action is pre-empted by federal law is one of c ong r essional intent. The p u rpose o f Cong r ess is the ultimate touchston e. ” G ade v. Nat’l Solid W astes M gmt. A ss’n
, 5 05 U .S. 88, 96 (1992) (internal quotation marks and brackets omitted).

The Affordable Care Ac t presents a classic c ase o f preemption b y implication because the Ariz ona Ac t “ s t ands

as an obstacle to the accomplishment and ex ecution of the full
purposes and objectives of C o n g ress.” Id. at 98 (internal quotation marks omitted). The S u preme Court has
recog niz ed that the individual mandate is a proper ex ercise o f Cong r ess’ Article I tax ing p ower, Nat’l Fed’n of Indep. Bus.
,C O O N S V

. L E W 19

132 S. Ct. at 2600, and we affirm the constitutionality of the Affordable Care Act ag ain today

. The Ariz ona Act provides that its citiz en s m a y foreg o minimum health insurance
coverag e and a

bstain from pay ing a

ny p enalties, Ariz

. Const.
art. XXVI I
, § 2, which is ex actly what the individual mandate requires. The Ariz ona A c t thereby stands as an obstacle to Cong r ess’ objecti v e to ex pand minimum essential health
coverag e nationwide throug h the i n dividual mandate, 26 U.S.C. § 5 000A, and is, t h e r e fore, preempted under the Supremacy Clause. See Gade
, 505 U.S. at 103 (“A state law

. . . is preempted if it interferes w ith the methods by which the federal statute was desig ned to reach [ its] g o al.” (internal quotation marks omitted)).

CONCLUSION

W e affirm the district court’s holding that the individual mandate does not violate Plaintiff Co o ns’ substantive d ue process righ t to medical autonomy , and we affirm the dismissal, for lack of ripeness, of Coo n s ’ c h a lleng e to the i n dividual mandate for v iolation of h is substantive d u e process r ig h t to informational pr i vacy

. W e also affirm the district court’s holding that the Affordable Care Act preempts the Ariz o na Act. F inally
, with r espect to Plaintiff Novack’s challeng e to I PAB
, we vacate the district court’s decision on the merits of the clai m and remand with instructions to dismiss it for lack of jurisdiction.

AF F IRMED in part, VACATED in part a nd REMANDED w ith instructions. Costs on appeal sh all be awarded to Defendants-Appellees.