FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SKYLINE WESLEYAN CHURCH,

Plaintiff-Appellant,

v.

CALIFORNIA DEPARTMENT OF 

MANAGED HEALTH CARE; MICHELLE 

ROUILLARD, in her official capacity 

as Director of the California 

Department of Managed Health 

Care,

Defendants-Appellees.

No. 18-55451

D.C. No.

3:16-cv-00501-

CAB-DHB

OPINION

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

Before: Mary M. Schroeder and Michelle T. Friedland, 

Circuit Judges, and Lee H. Rosenthal,* District Judge.

Opinion by Judge Friedland

* The Honorable Lee H. Rosenthal, Chief United States District 

Judge for the Southern District of Texas, sitting by designation.
2 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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 

** 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

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. 

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 
4 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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. 

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.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 5

Karli Eisenberg (argued), Deputy Attorney General; Niromi 

W. Pfeiffer, Supervising Deputy Attorney General; Julie 

Weng-Gutierrez, Senior Assistant Attorney 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.

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 abortionrelated 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 

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.
6 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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.

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, 
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 7

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 DMHCregulated 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.

(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.
8 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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 

(7) Hospice care pursuant to [a different provision of 

the California Health and Safety Code].

Cal. Health & Safety Code § 1345(b).
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 9

allowed subscribers to sign up for coverage with abortionrelated 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 DMHCregulated 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 

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 

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.

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.
10 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 parttime. 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 

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 

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.”
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 11

not legally required, and a concern that non-DMHCregulated 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 

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 

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).
12 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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 

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).
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 13

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 

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 
14 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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 
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 15

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.

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 
16 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 abortioncoverage 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 Skylinetailored exemption from the Coverage Requirement—in 

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.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 17

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 

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 
18 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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 
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 19

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 

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

7 When the DMHC argued in the district court that Skyline lacked 

standing, Skyline did not, in either its opposition brief or during the 
20 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 

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) 

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.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 21

(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.

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 Skyline, 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 

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.
22 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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. 

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. 
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 23

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, 

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 
24 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 an order requiring the DMHC to 

exempt Skyline from the Coverage Requirement, 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 

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

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 
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 25

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 

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 

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).
26 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 the Coverage Requirement’s 

application to Skyline. 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 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 

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)).
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 27

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 lawenforcement 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 

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 
28 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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 seek 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 

remand to the district court to reassess the justiciability of 

Skyline’s remaining claims in light of our decision.
SKYLINE WESLEYAN CHURCH V. CAL. DMHC 29

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.

These considerations may have persuaded us to exercise 

our equitable discretion to reach the merits of Skyline’s 
30 SKYLINE WESLEYAN CHURCH V. CAL. DMHC

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.