The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANA MEDICAL No. 23-35014
ASSOCIATION; FIVE VALLEYS
UROLOGY, PLLC; PROVIDENCE D.C. No. 9:21-cv-
HEALTH & SERVICES - 00108-DWM
MONTANA; WESTERN
MONTANA CLINIC, PC; PAT
APPLEBY; MARK CARPENTER; OPINION
DIANA JO PAGE; WALLACE L.
PAGE; CHEYENNE SMITH,
Plaintiffs-Appellees,
MONTANA NURSES
ASSOCIATION,
Intervenor-Plaintiff-
Appellee,
v.
AUSTIN KNUDSEN, Montana
Attorney General; LAURIE ESAU,
Montana Commissioner of Labor and
Industry,
Defendants-Appellants.
2 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted February 8, 2024
Portland, Oregon
Filed October 9, 2024
Before: M. Margaret McKeown, Jay S. Bybee, and Daniel
A. Bress, Circuit Judges.
Opinion by Judge Bress;
Concurrence by Judge McKeown
SUMMARY *
Vaccinations / Preemption
The panel (1) reversed the district court’s decision that
Montana House Bill 702 (HB 702), which prohibits
discrimination based on vaccination status, is preempted by
the Americans with Disabilities Act (ADA) and the
Occupational Health and Safety Act (OSH Act) and violates
the Fourteenth Amendment’s Equal Protection Clause; and
(2) vacated in full the district court’s permanent injunction
enjoining enforcement of HB 702 in health care settings.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 3
Plaintiffs are health care providers and several Montana
residents with compromised immune systems who sought to
invalidate HB 702 in all health care settings. They alleged
that the ADA and the OSH Act impliedly preempt HB 702
because the statutes require employers to know employee
vaccination status and to discriminate on that basis in order
to furnish ADA accommodations for persons with
immunocompromising disabilities and to satisfy the OSH
Act’s duty to furnish a workplace free of recognized
hazards. Plaintiffs further alleged that HB 702 violates the
Equal Protection Clauses of the United States and Montana
Constitutions by irrationally subjecting different types of
health-related facilities to differing rules.
The panel held that because plaintiffs sought to enjoin
HB 702 across all health care settings, plaintiffs’ preemption
and Equal Protection theories were properly analyzed as
facial challenges. The panel held that neither the ADA nor
the OSH Act’s general duty clause facially preempts HB 702
in health care settings. Plaintiffs had not demonstrated that
HB 702 creates a genuine conflict with the ADA in any
specific case, much less that HB 702 is facially invalid in all
health care settings. The district court’s broad findings
showed at most only the existence of a perceived conflict
that was too speculative on these facts to justify
preemption. Nor did the record support an injunction in the
case of any specific plaintiff. The panel reserved judgment
on whether, in a future case, the ADA and the OSH Act’s
general duty clause could preempt HB 702 on a narrower,
as-applied basis.
The panel held that the Equal Protection Clause does not
facially invalidate HB 702 in health care settings because the
classification and differential treatment of facilities could
rationally reflect Montana’s interest in balancing personal
4 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
privacy interests and public health by exempting facilities
that the State believes pose different risks.
Concurring, Judge McKeown wrote separately to
address the standards for facial preemption and to encourage
the Ninth Circuit to join the majority of its sister circuits in
articulating the proper standard. Under such a standard,
courts must analyze the potential conflict between state and
federal law based on the general principles of preemption. If
there is a conflict, the scope of the remedy must be tailored
to the scope of the conflict. If the scope of the conflict is
broad enough, then a facial remedy may be proper, but courts
must not facially strike down a state law with a “plainly
legitimate sweep.” In this case, Judge McKeown agreed
with the majority that plaintiffs had not shown enough to
justify facial preemption, even under the lower “plainly
legitimate sweep” standard.
COUNSEL
Kathryn S. Mahe (argued) Justin K. Cole, Garlington Lohn
& Robinson PLLP, Missoula, Montana; Raph Graybill,
Graybill Law Firm PC, Great Falls, Montana; for Plaintiffs-
Appellees.
Brent A. Mead (argued), Deputy Solicitor General; Michael
D. Russell, Assistant Attorney General; Christian B.
Corrigan, Solicitor General; Austin Knudsen, Montana
Attorney General; Office of the Montana Attorney General,
Montana Department of Justice, Helena, Montana; for
Defendants-Appellants.
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 5
Elise K. Yarnell and David Tryon, Hahn Loeser & Parks,
Columbus, Ohio, for Amicus Curiae The Buckeye Institute.
Leonard A. Nelson, American Medical Association,
Chicago, Illinois, for Amicus Curiae American Medical
Association.
OPINION
BRESS, Circuit Judge:
In 2021, the Montana Legislature enacted House Bill 702
(HB 702) to prohibit discrimination based on vaccination
status. The district court below held that two federal laws,
the Americans with Disabilities Act (ADA) and the
Occupational Health and Safety Act (OSH Act), impliedly
preempt HB 702. The court further held that HB 702
violates the Fourteenth Amendment’s Equal Protection
Clause because it fails rational basis review. For these
reasons, the district court permanently enjoined the
enforcement of HB 702 in health care settings.
We hold that the ADA, the OSH Act, and the Equal
Protection Clause do not facially invalidate HB 702 in health
care settings. We reverse the district court’s decision and
vacate its injunction.
I
A
HB 702 amended the Montana Human Rights Act to
prohibit discrimination based on vaccination or immunity
status. Prompted by COVID-19 but not limited to COVID
6 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
vaccinations, HB 702 makes it “an unlawful discriminatory
practice for:”
(a) a person or a governmental entity to
refuse, withhold from, or deny to a person
any local or state services, goods, facilities,
advantages, privileges, licensing, educational
opportunities, health care access, or
employment opportunities based on the
person’s vaccination status or whether the
person has an immunity passport;
(b) an employer to refuse employment to a
person, to bar a person from employment, or
to discriminate against a person in
compensation or in a term, condition, or
privilege of employment based on the
person’s vaccination status or whether the
person has an immunity passport; or
(c) a public accommodation to exclude, limit,
segregate, refuse to serve, or otherwise
discriminate against a person based on the
person’s vaccination status or whether the
person has an immunity passport.
Mont. Code Ann. § 49-2-312(1).
State law defines an “[i]mmunity passport” as “a
document, digital record, or software application indicating
that a person is immune to a disease, either through
vaccination or infection and recovery.” Id. § 49-2-312(5)(a).
“‘Vaccination status’ means an indication of whether a
person has received one or more doses of a vaccine.” Id.
§ 49-2-312(5)(b).
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 7
HB 702 includes some carve-outs. The first makes clear
that an employer does not commit unlawful discrimination
by “recommend[ing] that an employee receive a vaccine.”
Id. § 49-2-312(3)(a). More germane to this lawsuit, a second
exception provides that a “health care facility” “does not
unlawfully discriminate” if it:
(i) asks an employee to volunteer the
employee’s vaccination or immunization
status for the purpose of determining whether
the health care facility should implement
reasonable accommodation measures to
protect the safety and health of employees,
patients, visitors, and other persons from
communicable diseases. A health care
facility may consider an employee to be
nonvaccinated or nonimmune if the
employee declines to provide the employee’s
vaccination or immunization status to the
health care facility for purposes of
determining whether reasonable
accommodation measures should be
implemented.
(ii) implements reasonable accommodation
measures for employees, patients, visitors,
and other persons who are not vaccinated or
not immune to protect the safety and health
of employees, patients, visitors, and other
persons from communicable diseases.
Id. § 49-2-312(3)(b).
This second exception thus allows a “health care facility”
to ask about employee vaccination status, to infer lack of
8 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
vaccination from an employee’s non-answer, and to then
provide reasonable accommodations to protect the health
and safety of employees, patients, and others. Id. A separate
provision defines “health care facility” as one that is used “to
provide health services, medical treatment, or nursing,
rehabilitative, or preventive care to any individual,”
including:
chemical dependency facilities, critical
access hospitals, eating disorder centers, end-
stage renal dialysis facilities, home health
agencies, home infusion therapy agencies,
hospices, hospitals, infirmaries, long-term
care facilities, intermediate care facilities for
the developmentally disabled, medical
assistance facilities, mental health centers,
outpatient centers for primary care,
outpatient centers for surgical services,
rehabilitation facilities, residential care
facilities, and residential treatment facilities.
Id. § 50-5-101(26)(a) (2021). But “health care facility” does
not include “offices of private physicians [and] dentists,”
among others. Id. § 50-5-101(26)(b) (2021). 1
Finally, HB 702 contains a third carve-out for a separate
class of facilities: “A licensed nursing home, long-term care
facility, or assisted living facility is exempt from compliance
with 49-2-312 during any period of time that compliance
with 49-2-312 would result in a violation of regulations or
1
This provision was amended during the pendency of this case, but
without materially changing the language relevant to this appeal. See
Mont. Code Ann. § 50-5-101(20)(a). For consistency, this opinion refers
to the 2021 versions of the statute.
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 9
guidance issued by [Centers for Medicare and Medicaid
Services (CMS) or the Centers for Disease Control and
Prevention].” Id. § 49-2-313.
Violators of HB 702 can be required to rectify any harm
caused by their illegal discrimination. Id. § 49-2-506. They
can also be subject to civil suits, id. § 49-2-512(3), and
criminal penalties, id. § 49-2-601.
B
This lawsuit aimed to invalidate HB 702 in all health care
settings. The plaintiffs are a hospital system, two offices of
private physicians, a medical association, and several
Montana residents with compromised immune systems who
are allegedly “qualified individuals with a disability” under
the ADA. A union for Montana nurses also intervened as a
plaintiff, alleging injury to its members.
Plaintiffs are primarily concerned about unvaccinated
health care workers infecting coworkers and patients,
especially those who are immunocompromised. They
maintain that HB 702 increases this risk by preventing the
employers of Montana health care providers from knowing
health care employees’ vaccination status.
To that end, plaintiffs claimed that the ADA and the
OSH Act preempted HB 702. Plaintiffs’ ADA preemption
theory is that in health care settings, the ADA requires
employers to know employee vaccination status and to
discriminate on the basis of this status in order to furnish
ADA accommodations for persons with
immunocompromising disabilities, including patients and
other employees. Plaintiffs’ OSH Act preemption theory is
premised on the similar belief that health care employers
must have either vaccinated employees or knowledge of
10 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
their employees’ vaccination status to satisfy their OSH Act
duty to furnish a workplace free of recognized hazards.
Plaintiffs also alleged that HB 702 violated the Equal
Protection Clauses of the United States and Montana
Constitutions. Plaintiffs maintained that, in imposing
different requirements on different types of health care
facilities through its series of carve-outs, HB 702 created
“unreasonable and baseless” distinctions because the
facilities often employ the same providers, treat the same
patients, and have the same interest in preventing infection.
Plaintiffs sought to enjoin enforcement of HB 702 in all
health care settings. After a bench trial, the district court
granted plaintiffs’ requested relief. The State of Montana
appealed. We review the district court’s legal rulings,
including its preemption determinations, de novo. See
MetroPCS Cal., LLC v. Picker, 970 F.3d 1106, 1117 (9th
Cir. 2020).
II
The district court first held that the ADA preempts HB
702 in health care settings because ADA compliance
requires knowledge of health care workers’ vaccination
status and discrimination based on employees’ lack of
vaccination. We disagree. The ADA does not facially
preempt HB 702 in health care settings.
A
Preemption follows from the constitutional directive that
the laws of the United States are the “supreme Law of the
Land . . . any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
If state laws conflict with federal law, they are preempted
and of no effect. See, e.g., Mut. Pharm. Co. v. Bartlett, 570
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 11
U.S. 472, 479–80 (2013); Nat’l R.R. Passenger Corp. v. Su,
41 F.4th 1147, 1152 (9th Cir. 2022).
Plaintiffs do not argue that the ADA expressly preempts
HB 702, but that it does so impliedly. They claim that, in
health care settings, HB 702 conflicts with the ADA. For
preemption purposes, such a conflict exists “where it is
impossible for a private party to comply with both state and
federal law,” known as impossibility preemption, or where
“the challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress,” known as obstacle preemption.
Atay v. Cnty. of Maui, 842 F.3d 688, 699 (9th Cir. 2016)
(quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 372–73 (2000)).
To show impossibility preemption, plaintiffs must
establish that it is “impossible for a private party to comply
with both state and federal requirements.” English v. Gen.
Elec. Co., 496 U.S. 72, 79 (1990). The “existence of a
hypothetical or potential conflict” is “insufficient.” Rice v.
Norman Williams Co., 458 U.S. 654, 659 (1982). That is,
“the conflict must be an actual conflict, not merely a
hypothetical or potential conflict.” Chicanos Por La Causa,
Inc. v. Napolitano, 558 F.3d 856, 863 (9th Cir. 2009).
Although this does not foreclose challenges based on future
or anticipated conflicts, it does mean that “speculative”
conflicts are not sufficient. Id. at 866. Thus, for
impossibility preemption, the record must fairly support “an
irreconcilable conflict” between federal and state law. Rice,
458 U.S. at 659.
Under the doctrine of obstacle preemption, a state law is
preempted if it “undermines the intended purpose and
‘natural effect’ of the federal law.” Crosby, 530 U.S. at 373.
12 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
We determine whether the state law creates a “sufficient
‘obstacle’ to give rise to implied preemption” by looking to
“the federal statute as a whole and identifying its purpose
and intended effects.” Atay, 842 F.3d at 699. And when “a
statute regulates a field traditionally occupied by states, such
as health [and] safety,” as is the case here, “a ‘presumption
against preemption’ adheres.” Id. (quoting Wyeth v. Levine,
555 U.S. 555, 565 n.3 (2009)). In the obstacle preemption
context, we thus “assume that a federal law does not preempt
the state’s police powers absent a ‘clear and manifest
purpose of Congress.’” Id. (quoting Wyeth, 555 U.S at 565).
Finally, because plaintiffs seek to enjoin HB 702 across
all health care settings—which “implicate[s] the
enforcement of the law against third parties”—plaintiffs’
ADA preemption theory is properly analyzed as a facial
challenge. Hoye v. City of Oakland, 653 F.3d 835, 855 (9th
Cir. 2011) (quoting Foti v. City of Menlo Park, 146 F.3d 629,
635 (9th Cir. 1998)). We therefore proceed with caution
because facial challenges “often rest on speculation” and
“raise the risk of ‘premature interpretation of statutes on the
basis of factually barebones records.’” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450
(2008) (quoting Sabri v. United States, 541 U.S. 600, 609
(2004)). To prevail, plaintiffs “must establish that no set of
circumstances exists under which [HB 702] would be valid”
in health care settings. United States v. Salerno, 481 U.S.
739, 745 (1987). As we have explained, although “[t]he
Supreme Court and this court have called into question the
continuing validity of the Salerno rule in the context of First
Amendment challenges,” “[i]n cases involving federal
preemption of a local statute, however, the rule applies with
full force.” Sprint Telephony PCS, L.P. v. Cnty. of San
Diego, 543 F.3d 571, 579 n.3 (9th Cir. 2008) (en banc); see
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 13
also, e.g., Am. Apparel & Footwear Assoc., Inc. v. Baden,
107 F.4th 934, 938 (9th Cir. 2024) (“The Salerno rule
applies to a federal preemption facial challenge to a state
statute.”); id. at 933 (“[T]he Salerno standard applies to
conflict preemption.”).
B
The ADA prohibits discrimination on the basis of
disability “in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public
accommodation . . . .” 42 U.S.C. § 12182(a). In the
employment context (Title I), discrimination includes “not
making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless
such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the
business of such covered entity.” Id. at § 12112(b)(5)(A);
see also Snapp v. United Transp. Union, 889 F.3d 1088,
1095 (9th Cir. 2018) (discussing discrimination under Title
I).
A public accommodation violates the ADA (Title III)
when it fails
to make reasonable modifications in policies,
practices, or procedures, when such
modifications are necessary to afford such
goods, services, facilities, privileges,
advantages, or accommodations to
individuals with disabilities, unless the entity
can demonstrate that making such
modifications would fundamentally alter the
14 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
nature of such goods, services, facilities,
privileges, advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii). Public accommodations are
defined to include the “professional office of a health care
provider” and hospitals. Id. § 12181(7)(F).
Under both Titles I and III of the ADA, an entity is only
liable for failing to make reasonable accommodations or
modifications. See Snapp, 889 F.3d at 1095; Fortyune v.
Am. Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th Cir.
2004). Whether an accommodation is reasonable “involves
a fact-specific, case-by-case inquiry that considers, among
other factors, the effectiveness of the modification in light of
the nature of the disability in question and the cost to the
organization that would implement it.” Id. (quoting
Staron v. McDonald’s Corp., 51 F.3d 353, 356 (2d Cir.
1995)).
The district court held that ADA compliance in health
care settings requires employers to know health care
workers’ vaccination status and to discriminate based on
employees’ lack of vaccination. As the court reasoned,
“[d]eprived by law of the ability to require vaccination or
immunity status of an employee, a health care employer is
not able to properly consider possible reasonable
accommodations if an employee asks to limit his or her
exposure to unvaccinated individuals.” The district court
thus concluded the State was “unable to meaningfully
demonstrate how employers can accommodate a disabled
person or employee and still comply with” HB 702.
The district court made several broad findings in support
of its preemption determination. The court discussed the
importance of vaccines in “creating a safe and effective
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 15
health care environment.” It further found that health care
employers had immunocompromised patients and staff who
were disabled within the meaning of the ADA and who
wanted other health care workers to be vaccinated. And the
court cited testimony about the risk that unvaccinated health
care employees may pose to “vulnerable and
immunocompromised patients” on account of “the high risk
of serious injury due to infection.” Based on these findings,
the district court reasoned that HB 702 conflicted with the
ADA: health care facilities needed to know employee
vaccination status and to discriminate based on that status to
make ADA-required accommodations for
immunocompromised disabled persons.
We conclude that the district court’s high-level findings
show at most only “the existence of a hypothetical or
potential conflict” between the ADA and HB 702, Rice, 458
U.S. at 659, that is, a perceived conflict that is too
speculative on these facts to justify preemption. Plaintiffs
have not demonstrated that HB 702 creates a genuine
conflict with the ADA in any specific case, much less that
HB 702 is facially invalid in all health care settings. See
Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1010 (9th Cir.
2007) (“We find preemption only in ‘those situations where
conflicts will necessarily arise.’” (quoting Goldstein v.
California, 412 U.S. 546, 554 (1973))). The district court’s
generalized factual findings about the importance of
vaccines do not show an “irreconcilable conflict” between
HB 702 and the ADA or that HB 702 stands as an obstacle
to the objectives of the ADA, whether facially or in any
specific case. Rice, 458 U.S. at 659.
As we have discussed, the ADA requires health care
facilities to make “reasonable accommodations” for
qualifying disabled employees, absent “undue hardship” to
16 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
the employer, 42 U.S.C. § 12112(b)(5)(A), as well as
“reasonable modifications in policies, practices, or
procedures” when “necessary” to afford their services to
individuals with disabilities. Id. § 12182(b)(2)(A)(ii).
Determining the scope of the duties to make “reasonable”
accommodations and modifications requires reference to the
particular situation of the potential ADA plaintiff: “Because
the issue of reasonableness depends on the individual
circumstances of each case, this determination requires a
fact-specific, individualized analysis of the disabled
individual’s circumstances and the accommodations that
might” be necessary. Wong v. Regents of Univ. of Cal., 192
F.3d 807, 818 (9th Cir. 1999); see also, e.g., Castle v.
Eurofresh, Inc., 731 F.3d 901, 910–11 (9th Cir. 2013)
(same); McGary v. City of Portland, 386 F.3d 1259, 1270
(9th Cir. 2004) (same).
But the evidence presented at trial—about the general
importance of vaccines and the general health risks posed by
unvaccinated workers—does not demonstrate anything more
than that “in a hypothetical situation a private party’s
compliance with” HB 702 “might cause [it] to violate the”
ADA, which is insufficient to show a preemption-producing
conflict between the two laws. Rice, 458 U.S. at 659. We
lack information about specific plaintiffs, specific health
care settings, and other available accommodations that could
satisfy the ADA’s requirements with respect to any
particular disabled person. On this record, plaintiffs have
not shown that a specific accommodation or modification
involving knowledge of employee vaccination status or
discrimination based on vaccination status would be
reasonable or necessary in any or all health care settings.
We find instructive the Fifth Circuit’s decision in E.T. v.
Paxton, 19 F.4th 760 (5th Cir. 2021). In E.T., the plaintiffs
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 17
claimed that the ADA preempted a Texas law prohibiting
mask mandates in schools because a school’s failure to have
a mask mandate would deny plaintiffs a quality education
based on their disabilities. Id. at 763–64. But as the Fifth
Circuit explained, “plaintiffs are not entitled to their
preferred accommodation, but only a reasonable
accommodation.” Id. at 767. “Given the availability of
vaccines, voluntary masking, and other possible
accommodations—options barely acknowledged by either
plaintiffs or the district court—the record before us likely
does not support the conclusion that a mask mandate would
be both necessary and obvious under the ADA . . . .” Id. at
768 (emphasis omitted). The state law thus did not “render[]
it a ‘physical impossibility’ for schools to comply with the
ADA,” nor would the state law “‘disturb, interfere with, or
seriously compromise the purposes of’” the ADA. Id.
(quoting City of Morgan City v. S. La. Elec. Coop. Ass’n, 31
F.3d 319, 322 (5th Cir. 1994)).
A similar analysis applies here. Like in E.T., the
plaintiffs’ ADA claim “rests on the faulty premise that the
only accommodation available to plaintiffs” requires
employer knowledge of employee vaccination status and
discrimination based on that status. Id. In accepting this
premise, the district court below made no apparent findings
about whether the requested accommodation would be
necessary to accommodate any specific ADA claimants, let
alone all ADA-protected persons in health care settings. Nor
did the district court properly consider whether ADA
beneficiaries could be reasonably accommodated in ways
that do not violate HB 702, such as through uniform PPE
requirements, testing measures, appropriate alternative work
arrangements, and so on. See id. at 768 (noting that
“voluntary masking” could be an alternative accommodation
18 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
to a mask mandate); see also E.T. v. Paxton, 41 F.4th 709,
718 (5th Cir. 2022) (“It is plainly within the State’s power to
remove one possible accommodation from consideration, so
long as other reasonable options remain.”). The district
court also did not sufficiently address whether the plaintiffs’
desired accommodations were reasonable, whether in any
specific case or in all potential cases arising from health care
settings. See Fortyune, 364 F.3d at 1083 (noting that the
reasonableness of an accommodation can turn on the cost of
implementation). In the absence of a record more
particularized to specific plaintiffs and specific medical
facilities, it cannot be said that a health care employer’s
inability to discriminate based on employees’ lack of
vaccination would lead to ADA violations in any or all cases,
so as to warrant facially invalidating HB 702 in health care
settings.
We additionally note that while not dispositive, the lack
of any apparent past ADA claim involving HB 702
highlights the hypothetical, speculative nature of the alleged
conflict between the two laws. The record reflects that at
least some of the plaintiff health care institutions did not
require employees to be vaccinated or have pre-HB 702
policies that would have allowed employers to know their
employees’ vaccination histories. And yet the record lacks
a concrete indication that these health care facilities
encountered specific requests for reasonable ADA
accommodations from particular patients or others relating
to the vaccination status of employees. To the extent that
patients and others have inquired about the vaccination
status of those working at health care facilities, the record
lacks sufficient information as to the nature of these requests,
whether they were reasonable, and how they might have
been accommodated through other means. Similarly,
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 19
although the district court indicated that one patient plaintiff,
Ms. Page, requested to see only vaccinated health care
providers, this finding is contradicted by other testimony
from Ms. Page. The absence of any developed record
specific to a particular putative ADA plaintiff falls short of
the “fact-specific, individualized analysis” that the ADA
requires, Wong, 192 F.3d at 818, which in turn would inform
the preemption analysis.
That the district court’s injunction is overbroad is also
underscored by the fact that the injunction extends even to
health care settings exempted from HB 702, such as
hospitals. See Mont. Code Ann. § 49-2-312(3)(b). These
exempted facilities may (1) “ask[] an employee to volunteer
the employee’s vaccination or immunization status,”
(2) “consider an employee to be nonvaccinated or
nonimmune if the employee declines to provide the
employee’s vaccination or immunization status,” and (3) use
that information to “implement[] reasonable accommodation
measures for employees, patients, visitors, and other persons
who are not vaccinated or not immune to protect the safety
and health of employees, patients, visitors, and other persons
from communicable diseases.” Id.
The district court reasoned that even exempted facilities
would remain unable to comply with the ADA because “the
exception only protects those who are not vaccinated or
immune” and “does not allow for accommodations to be
made for persons who have a disability, as is required under
the [ADA].” But § 49-2-312(3)(b) allows a “health care
facility” to ask employees about their vaccination status and,
based on their responses, to “implement reasonable
accommodation measures” to protect the safety and health
of all persons—whether “employees, patients, visitors, and
other persons.” That includes hypothetical ADA plaintiffs
20 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
whose theoretical claims provide the asserted basis for
preemption. The exceptions in § 49-2-312(3)(b) further
demonstrate that the district court’s permanent injunction as
to all health care settings is overbroad.
Because the record reflects at most only a hypothetical
or potential conflict between federal and state law, Rice, 458
U.S. at 659, we hold that the ADA does not facially preempt
HB 702 in health care settings. Nor does the record support
an injunction in the case of any specific plaintiff. We note,
however, that our decision does not foreclose future as-
applied ADA preemption challenges or affirmative defenses
to HB 702 enforcement, based upon a proper showing.
III
The district court also held that the OSH Act impliedly
preempts HB 702 in health care settings. That determination
is likewise incorrect.
The Secretary of Labor has responsibility for enforcing
the OSH Act, but she has delegated much of her relevant
statutory responsibilities to the Occupational Safety and
Health Administration (OSHA). See Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 92 (1992) (plurality).
“The OSH Act requires that every employer provide a
workplace that is ‘free from recognized hazards that are
causing or are likely to cause death or serious physical harm
to his employees’ (the ‘general duty’ clause) and ‘comply
with occupational safety and health standards promulgated’
by [OSHA].” Flower World, Inc. v. Sacks, 43 F.4th 1224,
1226–27 (9th Cir. 2022) (quoting 29 U.S.C. § 654(a)).
No OSHA standard governs the vaccinations with which
HB 702 is concerned. Although plaintiffs argued below that
HB 702 conflicts with certain OSHA regulations on
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 21
bloodborne pathogens, the district court rejected this
argument, and plaintiffs do not contest this ruling. Nor do
plaintiffs identify any other OSHA regulation with which
HB 702 could conflict. Indeed, although OSHA initially
promulgated a rule requiring COVID-19 vaccination
mandates for most employers with at least 100 employees,
the Supreme Court held that the agency lacked the authority
to do so. Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 595
U.S. 109, 115, 119–20 (2022) (per curiam).
Notwithstanding the absence of any governing OSHA
regulation, the district court held that HB 702 conflicted with
the OSH Act’s general duty clause. As referenced above,
that provision requires employers to “furnish to each of his
employees employment and a place of employment which
are free from recognized hazards that are causing or are
likely to cause death or serious physical harm to his
employees.” 29 U.S.C. § 654(a)(1). The district court
referenced testimony from one former state medical official
that “vaccines are necessary and important in health care
settings to limit or prevent the spread of disease.” The
district court further found that “vaccine-preventable
diseases constitute recognized hazards in the workplace.”
From this the court concluded that:
[H]ealth care settings cannot comply with
both the federal general duty clause [in the
OSH Act] to keep the workplace ‘free from
recognized hazards’ and [HB 702], because
the Montana statute removes an essential tool
from the health care provider’s toolbox to
22 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
stop or minimize the risk of spreading
vaccine-preventable disease.
The court thus held that “the general duty clause of the
[OSH] Act preempts” HB 702.
We disagree. Even assuming the OSH Act’s general
duty clause could impliedly preempt state laws such as HB
702, the district court’s broad injunction cannot stand. To
make out a violation of the general duty clause, the Secretary
of Labor “must prove that (1) the employer failed to render
its workplace free of a hazard which was (2) recognized and
(3) causing or likely to cause death or serious injury.”
Donovan v. Royal Logging Co., 645 F.2d 822, 829 (9th Cir.
1981) (quoting Titanium Metals Corp. of Am. v. Usery, 579
F.3d 536, 540 (9th Cir. 1978)). Proving the first element
requires the Secretary to “specify the specific steps an
employer should have taken to avoid the citation and
demonstrate their feasibility.” Id.
Considering the general duty clause under the implied
preemption framework, plaintiffs had to establish that a
health care entity would violate the OSH Act in complying
with HB 702 or that HB 702 stands as an obstacle to
Congress’s “clear and manifest purpose” in the OSH Act’s
general duty clause. See Wyeth, 555 U.S at 565. And
plaintiffs would need to make this showing as to all health
care settings to prevail on their facial challenge. See, e.g.,
Salerno, 481 U.S. at 745.
At a minimum, we conclude that the district court’s OSH
Act preemption analysis is infirm for substantially the same
reason as the court’s ADA holding: the district court’s
findings at most support a “hypothetical or potential
conflict” between the OSH Act and HB 702, which is
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 23
“insufficient.” Rice, 458 U.S. at 659. Whether HB 702
prevents employers from providing employment “free from
recognized hazards that are causing or are likely to cause
death or serious physical harm to . . . employees,” 29 U.S.C.
§ 654(a)(1), requires a more specific understanding in any
given case about the nature of the employer, the workplace,
the diseases in question, the risks they pose, the availability
and feasibility of other methods of preventing the transfer of
vaccine-preventable diseases, and so on. Cf. Donovan, 645
F.2d at 829; see also Fabi Const. Co. v. Sec’y of Labor, 508
F.3d 1077, 1081 (D.C. Cir. 2007) (“[T]he Secretary must
prove that a reasonably prudent employer familiar with the
circumstances of the industry would have protected against
the hazard in the manner specified by the Secretary’s
citation.” (quoting L.R. Willson & Sons, Inc. v.
Occupational Safety & Health Rev. Comm’n, 698 F.2d 507,
513 (D.C. Cir. 1983))).
The trial record in this case addresses these issues at too
high a level of generality to support a finding of preemption
as to any specific employer, much less all employers in
health care settings. Indeed, and perhaps tellingly, neither
the plaintiffs nor the district court identify any case holding
that the general duty clause impliedly preempts state law, let
alone one enjoining the enforcement of a state law as to an
entire industry. Cf. Ramsey Winch Inc. v. Henry, 555 F.3d
1199, 1205–07 (10th Cir. 2009) (holding that the general
duty clause did not preempt a state law relating to firearm
storage at places of employment because “OSHA is aware
of the controversy surrounding firearms in the workplace
and has consciously decided not to adopt a standard”
(emphasis omitted)). And particularly in the face of a
presumption against preemption, see Wyeth, 555 U.S. at 565
n.3, we are hard-pressed to endorse an expansive preemption
24 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
theory under which health care entities may have been
routinely violating the OSH Act by employing infection
control policies different than those plaintiffs prefer.
For these reasons, the record does not support the district
court’s conclusion that the OSH Act’s general duty clause
preempts HB 702 in all health care settings. As in the case
of the ADA, we reserve judgment on whether, in a future
case, the general duty clause could preempt HB 702 on a
narrower, as-applied basis.
IV
The plaintiffs further argue, and the district court agreed,
that HB 702 violates the Equal Protection Clauses of the
United States and Montana Constitutions by irrationally
subjecting different types of health-related facilities to
differing rules. We hold that HB 702 survives rational basis
review.
To prevail on a Fourteenth Amendment Equal Protection
Clause claim, a plaintiff “must show ‘that a class that is
similarly situated has been treated disparately.” Ariz. Dream
Act Coal. v. Brewer, 855 F.3d 957, 966 (9th Cir. 2017)
(quoting Christian Gospel Church, Inc. v. City & Cnty. of
S.F., 896 F.2d 1221, 1225 (9th Cir. 1990)). Then, a court
must determine whether the challenged governmental
classification satisfies the appropriate level of constitutional
scrutiny. Id. at 968. The parties agree that our equal
protection analysis is the same under both the federal and
Montana constitutions. Cf. McDermott v. Mont. Dep’t of
Corr., 29 P.3d 992, 998–99 (Mont. 2001).
The plaintiffs focus on the fact that through its regime of
exemptions, HB 702 imposes different rules for three
categories of health-related facilities. First, licensed nursing
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 25
homes, long-term care facilities, and assisted living facilities
are exempt from HB 702 to the extent necessary to comply
with CMS and CDC guidelines. Mont. Code Ann. § 49-2-
313. Second, facilities defined as “health care facilities”—
including hospitals—are exempt from HB 702, insofar as
they may ask employees to volunteer their vaccination
status, infer a lack of vaccination status from employees’
unwillingness to provide this information, and implement
reasonable accommodations to protect the safety of
employees, patients, and others. Id. §§ 49-2-312(3)(b); 50-
5-101(26)(a) (2021). Third, and finally, other health care
settings that are not defined as “health care facilities,” such
as private physician offices, are permitted neither
exemption.
It is questionable whether the facility classes are
similarly situated. But even assuming they are, HB 702 does
not violate the Equal Protection Clause. Because HB 702’s
treatment of health care settings does not implicate a
“fundamental right” or operate “to the peculiar disadvantage
of a suspect class,” rational basis review applies. See
Raidoo v. Moylan, 75 F.4th 1115, 1125 (9th Cir. 2023)
(quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976)).
In Olson v. California, 104 F.4th 66 (9th Cir. 2024) (en
banc), our en banc court recently confirmed the extremely
difficult task that awaits anyone who would challenge a
legislative distinction as irrationally drawn. In Olson, we
rejected the plaintiffs’ claim that a California law violated
the Equal Protection Clause by treating certain app-based
work arrangements in the transportation and delivery service
industry different from other app-based work arrangements.
Id. at 71–72. We assumed for purposes of our decision that
the two classes were similarly situated but concluded that the
26 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
“Equal Protection claim nevertheless fail[ed]” because
California had “rational reasons”—“stemming the erosion of
the middle class, and reducing income inequality”—for any
disparate treatment. Id. at 77–78.
As we explained in Olson, the rational basis standard
“ask[s] whether ‘there is any reasonably conceivable state of
facts that could provide a rational basis for the
classification.’” Id. at 77 (quoting FCC v. Beach Commc’ns,
508 U.S. 307, 313 (1993)). “We need not rely on the
legislature to proffer its actual rationale motivating the
legislation—or any rationale, for that matter.” Id. at 78
(citing Nordlinger v. Hahn, 505 U.S. 1, 15 (1992)). And a
state has “no obligation to produce evidence to sustain the
rationality of a statutory classification.” Heller v. Doe by
Doe, 509 U.S. 312, 320 (1993). Instead, the classification
“may be based on rational speculation unsupported by
evidence or empirical data.” Id. (quoting Beach Commc’ns,
508 U.S. at 315). Plaintiffs have the burden to “negate
‘every conceivable basis’ which might justify” the
classification. Olson, 104 F.4th at 71 (quoting Beach
Commc’ns, 508 U.S. at 314–15). Given this high burden, it
is “no surprise that the Court hardly ever strikes down a
policy as illegitimate under rational basis scrutiny.”
Trump v. Hawaii, 585 U.S. 667, 705 (2018).
HB 702 easily satisfies rational basis review. The
classification and differential treatment of facilities could
rationally reflect Montana’s interest in balancing personal
privacy interests and public health by exempting facilities
that the State believes pose different risks. Montana could
rationally conclude that its interest in outlawing
discrimination based on vaccination status was less
compelling in different types of facilities that provide
different forms of care or that present greater risks for the
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 27
spread of infectious diseases. Montana was not required to
conclude that HB 702 should operate identically in private
doctors’ offices, hospitals, and nursing homes.
The district court’s conclusion that HB 702’s distinctions
are irrational seemingly rested on its mistaken belief that the
State needed to “prove” or “convincingly argue” that HB
702 is “related to health and safety.” Longstanding case law
makes clear that Montana did not need to provide “evidence
or empirical data” or like justifications for the precise
contours of the classifications it drew. Beach Commc’ns,
508 U.S. at 315. And it is irrelevant whether the State
“actually articulate[d]” a sufficient rationale for its law.
Nordlinger, 505 U.S. at 15. The district court thus erred in
holding that HB 702’s classification scheme lacked any
rational basis.
V
Finally, we deem moot the portion of the district court’s
order enjoining the enforcement of HB 702 to the extent it
conflicted with interim CMS regulations requiring COVID-
19 vaccinations in health care facilities. See 86 Fed. Reg.
61,555 (Nov. 5, 2021). The district court enjoined HB 702
“for so long as the” CMS regulations remained effect. These
regulations have since been rescinded. See 88 Fed. Reg.
36,485, 36,488 (June 5, 2023).
As to those regulations, the district court’s order is thus
no longer in effect, by its own terms. The expiration of the
interim CMS regulations also moots any preemption claim
based on those regulations. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950); NASD Disp.
Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065,
1068 (9th Cir. 2007).
28 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
* * *
HB 702 is not facially invalid as to health care settings
under the ADA, OSH Act, or Equal Protection Clause. We
vacate the district court’s injunction in full.
REVERSED; VACATED.
McKEOWN, Circuit Judge, concurring:
I write separately to address the standards for facial
preemption. The majority appropriately relies on two
Supreme Court cases that, if taken at face value, erect an
insurmountable bar for litigants: United States v. Salerno,
481 U.S. 739 (1987), and Rice v. Normal Williams Co., 458
U.S. 654 (1982). The challenge is to interpret and reconcile
these cases in a practical way that remains faithful to the
Supreme Court’s teachings. Courts are rightly concerned
with hastily striking down a state law in its entirety. And yet,
facial preemption persists for good reason. See City of Los
Angeles v. Patel, 576 U.S. 409, 415 (2015) (“[T]he Court has
allowed such challenges to proceed under a diverse array of
constitutional provisions.”). Our circuit’s articulation of the
facial preemption standards has engendered confusion in this
murky, but important area of law. I write in the hope of
clarifying the principles at stake and with the wish that our
circuit will ultimately join the majority of circuits on these
issues.
I. United States v. Salerno
The first standard comes from United States v. Salerno.
In Salerno, the Supreme Court declared that, in a facial
challenge, “the challenger must establish that no set of
circumstances exists under which the [state statute] would
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 29
be valid.’” 481 U.S. at 745. This standard, which is widely
criticized, has fractured the circuits and raises too high a bar
for litigants attempting to vindicate federal rights. In my
view, we ought to make explicit what the Court has done
implicitly: bid the Salerno standard goodbye.
Decades ago, Justice Stevens wrote in a concurrence, “I
do not believe the Court has ever actually applied such a
strict standard, even in Salerno itself, and the Court does not
appear to apply Salerno here.” Washington v. Glucksberg,
521 U.S. 702, 740 (1997) (Stevens, J., concurring). Ten
years later, Justice Thomas, writing for the Court,
acknowledged, “While some Members of the Court have
criticized the Salerno formulation, all agree that a facial
challenge must fail where the statute has a ‘plainly legitimate
sweep.’” Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008) (quoting Glucksberg, 521
U.S. at 740 (Stevens, J., concurring)). Since then, the Court
generally presents the Salerno “no set of circumstances”
standard alongside the Washington State Grange “plainly
legitimate sweep” standard. See Moody v. NetChoice, LLC,
144 S. Ct. 2383, 2397 (2024) (“[A] plaintiff cannot succeed
on a facial challenge unless he ‘establish[es] that no set of
circumstances exists under which the [law] would be valid,’
or he shows that the law lacks a ‘plainly legitimate sweep.’”
(first quoting Salerno, 481 U.S. at 745, and then quoting
Wash. State Grange, 552 U.S. at 449)); United States v.
Stevens, 559 U.S. 460, 472 (2010) (same); Americans for
Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)
(same). But see United States v. Rahimi, 144 S. Ct. 1889,
1898 (2024).
The Court has even acknowledged that following
Salerno to its logical end can lead to an absurd result. In City
of Los Angeles v. Patel, the plaintiffs challenged a provision
30 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
of the municipal code that “compels ‘every operator of a
hotel to keep a record’ containing specified information
concerning guests and to make this record ‘available to any
officer of the Los Angeles Police Department for inspection’
on demand.” 576 U.S. 409, 412 (2015) (quoting Los Angeles
Municipal Code §§ 41.49(2), (3)(a), (4) (2015)). The city,
citing Salerno, argued that the facial challenge “must fail
because such searches will never be unconstitutional in all
applications.” Id. at 417. The city pointed to, for instance,
situations where police are responding to an emergency—an
established Fourth Amendment exception. Id. at 417–18. In
response, the Supreme Court reasoned:
While [the city] frames this argument as an
objection to respondents’ challenge in this
case, its logic would preclude facial relief in
every Fourth Amendment challenge to a
statute authorizing warrantless searches. For
this reason alone, the City’s argument must
fail: The Court’s precedents demonstrate not
only that facial challenges to statutes
authorizing warrantless searches can be
brought, but also that they can succeed.
Id. In other words, although the city could come up with
circumstances that pose no conflict between the municipal
code provision and federal law, Salerno did not preclude the
plaintiffs’ facial argument. And so, the Court distanced itself
from Salerno and affirmed the role of facial challenges.
In light of these mixed signals from the Court, the
circuits have taken different approaches. Four circuits—the
First, Second, Sixth, and Eighth Circuits—apply Salerno
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 31
alone; 1 the Fifth, Ninth, and D.C. Circuits have, with some
exceptions, quietly followed the Supreme Court’s lead in
articulating the Salerno and Washington State Grange
standards as alternatives; 2 and six circuits—the Third,
Fourth, Seventh, Tenth, Eleventh, and Federal Circuits—
have explicitly weakened or abandoned Salerno. 3 I
1
NCTA -- The Internet & Television Ass’n v. Frey, 7 F.4th 1, 17 (1st Cir.
2021) (applying Salerno); Cmty. Hous. Improvement Program v. City of
New York, 59 F.4th 540, 548 (2d Cir. 2023) (applying Salerno and
rejecting arguments for a more relaxed standard under Patel and
Stevens); Worth v. Jacobson, 108 F.4th 677, 685 (8th Cir. 2024)
(applying Salerno). The Sixth Circuit has wavered between applying
Salerno alone and presenting the alternative “plainly legitimate sweep”
standard from Washington State Grange; but most recently, the Sixth
Circuit set forth a very strict application of Salerno. Compare Speet v.
Schuette, 726 F.3d 867, 872 (6th Cir. 2013) (applying the alternative
standards), with L. W. v. Skrmetti, 83 F.4th 460, 489–90 (6th Cir.)
(applying Salerno strictly), cert. granted sub nom. United States v.
Skrmetti, No. 23-477, 2024 WL 3089532 (U.S. June 24, 2024).
2
Comm. on Ways & Means v. U.S. Dep’t of Treasury, 45 F.4th 324, 339
(D.C. Cir. 2022) (“As recently as last year, the Supreme Court has
confirmed that outside of the First Amendment context, ‘a plaintiff
bringing a facial challenge must establish that no set of circumstances
exists under which the [law] would be valid . . . or show that the law
lacks a plainly legitimate sweep.’” (cleaned up)); In re Sealed Case, 936
F.3d 582, 589 (D.C. Cir. 2019) (same); Prison Legal News v. Ryan, 39
F.4th 1121, 1129 (9th Cir. 2022) (same); McKinley v. Abbott, 643 F.3d
403, 408 (5th Cir. 2011) (same); Int’l Women’s Day Mar. Plan. Comm.
v. City of San Antonio, 619 F.3d 346, 355 (5th Cir. 2010) (same). But see
Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 107 F.4th
415, 425 (5th Cir. 2024) (applying Salerno).
3
Lozano v. City of Hazleton, 724 F.3d 297, 313 n.22 (3d Cir. 2013);
People for the Ethical Treatment of Animals, Inc. v. N. Carolina Farm
Bureau Fed’n, 60 F.4th 815, 834 (4th Cir. 2023) (“As it appears, if courts
have ever articulated a clear standard for facial challenges, it is not the
32 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
encourage the Ninth Circuit to join the majority of its sister
circuits.
Our circuit initially acknowledged the controversy over
Salerno, but “chose[] to continue applying Salerno” until
instructed otherwise. See Puente Arizona v. Arpaio, 821 F.3d
1098, 1104 (9th Cir. 2016). Notably, more recently, we have
presented the Salerno and Washington State Grange
standards together. NetChoice, LLC v. Bonta, No. 23-2969,
2024 WL 3838423, at *7 (9th Cir. Aug. 16, 2024); Italian
Colors Rest., 878 F.3d 1165, 1175 (9th Cir. 2018) (same);
Prison Legal News v. Ryan, 39 F.4th 1121, 1129 (9th Cir.
2022) (same).
The Salerno critics have the better of the argument,
supported by how the Supreme Court has actually addressed
facial challenges. As the Third Circuit reasoned, “[the
Salerno] approach would reject a conflict preemption claim
in a facial challenge whenever a defendant can conjure up
just one hypothetical factual scenario in which
implementation of the state law would not directly interfere
with federal law.” Lozano v. City of Hazleton, 724 F.3d 297,
313 n.22 (3d Cir. 2013). The court pointed out that the
Supreme Court’s then-most recent facial preemption
precedents ignore Salerno, and indeed the Court’s reasoning
would make little sense if Salerno were still good law. Id.
With even more force, the Tenth Circuit states, “The idea
that the Supreme Court applies the ‘no set of circumstances’
Salerno formulation, which has never been the decisive factor in any
decision of the Court, including Salerno itself.” (cleaned up)); League of
Women Voters of Indiana, Inc. v. Sullivan, 5 F.4th 714, 728–29 (7th Cir.
2021); Doe v. City of Albuquerque, 667 F.3d 1111, 1123–24 (10th Cir.
2012); Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1256
(11th Cir. 2022); Rothe Dev. Corp. v. Dep’t of Def., 413 F.3d 1327,
1337–38 (Fed. Cir. 2005).
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 33
test to every facial challenge is simply a fiction, readily
dispelled by a plethora of Supreme Court authority.” Doe v.
City of Albuquerque, 667 F.3d 1111, 1124 (10th Cir. 2012).
The Tenth Circuit further highlighted that the “no set of
circumstances” test “completely divorces review of the
constitutionality of a statute from the terms of the statute
itself, and instead improperly requires a court to engage in
hypothetical musings about potentially valid applications of
the statute.” Id. at 1123. 4
The majority of the circuits simply apply the relevant
constitutional test in preemption cases—whether facial or
as-applied. For instance, the Tenth Circuit asserts that “no
one test” applies to all facial challenges. Id. at 1124. Rather,
the Tenth Circuit simply applies the “appropriate
constitutional framework” in analyzing the state statute at
issue. The distinction between facial and as-applied
challenges “goes to the breadth of the remedy employed by
the Court, not what must be pleaded in a complaint.” Id.
(quoting Citizens United v. FEC, 558 U.S. 310, 331 (2010));
see Club Madonna, 42 F.4th at 1256 (declining to apply
Salerno and concluding that the ordinance at issue “fails the
relevant constitutional test because, by requiring certain
businesses to verify the employment eligibility of
independent contractors and casual hires, it obstructs federal
law”).
4
Scholarly work has also long questioned the propriety of the Salerno
standard. See, e.g., Michael Dorf, Facial Challenges to State and
Federal Statutes, 46 Stan. L. Rev. 235, 238 (1994) (asserting that the
principle laid out by the Supreme Court in Salerno as a limit on facial
challenges “is wrong” because “[i]t neither accurately reflects the
Court’s practice” nor is “consistent with a wide array of legal practices”).
34 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
The Tenth Circuit’s approach, also embraced by five
other circuits, makes the most sense and is largely correct,
though I would also include the Supreme Court’s “plainly
legitimate sweep” framework as a backstop. Courts must
analyze the potential conflict between state and federal law
based on the general principles of preemption. If there is a
conflict, the scope of the remedy must be tailored to the
scope of the conflict. If the scope of the conflict is broad
enough, then a facial remedy may be proper, but courts must
not facially strike down a state law with a “plainly legitimate
sweep.”
II. Rice v. Normal Williams Co.
The majority also recites language from Rice v. Normal
Williams Co., noting that the “existence of a hypothetical or
potential conflict” is “insufficient” for facial preemption.
458 U.S. at 659. The majority further adds that plaintiffs may
show impossibility preemption based on future or
anticipated conflicts, so long as those conflicts are not overly
“speculative.” But this clarification—contrasting between
“hypothetical or potential” conflicts, deemed insufficient
under Rice, and “future or anticipated” conflicts, which
might pass muster with the majority—is a distinction
without a difference that threatens to obfuscate more than
clarify. Indeed, reliance on Rice is problematic for several
reasons.
To begin, the language—“the existence of a hypothetical
or potential conflict” is “insufficient”—creates a low bar,
necessary but not sufficient to showing facial preemption.
Rice stands for the uncontroversial proposition that a
plaintiff cannot hang a facial preemption claim on “a
hypothetical” conflict, that is, an isolated hypothetical
conflict. Facial preemption, of course, requires more.
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 35
That is not to say that facial preemption is foreclosed just
because the conflicts are not yet realized—i.e., hypothetical
or potential. All facial challenges are, by definition,
hypothetical or potential. In a facial challenge, plaintiffs
must argue that the state law will generally conflict with a
federal law in the future, justifying broad relief. These future
conflicts, generally affecting scores of non-party actors, are
necessarily hypothetical or potential.
Even more concerning, it is not clear that Rice remains
good law. In Rice, the Supreme Court considered whether a
California price fixing statute violated the Sherman Act. The
Court’s holding rested on a comparison between two prior
cases. On the one hand, in California Retail Liquor Dealers
Association v. Midcal Aluminum, Inc., the Court reasoned
that facial preemption is appropriate when a state statute
constitutes a per se violation of the Sherman Act. 445 U.S.
97, 102–03 (1980). On the other hand, in Joseph E. Seagram
& Sons v. Hostetter, the Court held that pegging prices to a
previous month’s rate could violate the Sherman Act through
economic pressures, but the conflict between the state statute
and the Sherman Act was too hypothetical for facial
preemption. 384 U.S. 35, 45 (1966). Thus, the Court in Rice
drew a line based on these two divergent precedents. 458
U.S. at 660–61. It concluded that a “hypothetical or potential
conflict” will not be sufficient for facial preemption but a per
se violation will be. Id. at 659.
Had the Court left it there, then Rice would likely be part
of an oft-recited standard for facial preemption. But it did
not. Seven years later, the Court implicitly walked back its
36 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
analysis in Rice by overruling Seagram. In Healy v. Beer
Institute, Inc. (Healy II), the Court declared:
[T]o the extent that Seagram holds that
retrospective affirmation statutes do not
facially violate the Commerce Clause, it is no
longer good law. . . . By tying maximum
future prices in one State to the lowest prices
in other States as determined at a specified
time in the past, retrospective affirmation
laws control pricing decisions in
nonaffirmation States by requiring that those
decisions reflect not only local market
conditions, but also market conditions in the
affirmation States—market conditions that
would be irrelevant absent the binding force
of the affirmation statutes.
491 U.S. 324, 343 (1989). The Court then cited to “[r]ecent
economic scholarship” on macroeconomic market theory to
show the cause of effect of the state law. Id. at 343 n.15.
Thus, at the very least, the Supreme Court has backed off
its most stringent facial preemption standard and
undermined Rice’s conclusions. The Court has since cited
the “hypothetical or potential” language in Rice sparingly. In
the last 25 years, the Court has cited this language from Rice
just once and did not rely on it to dismiss a facial preemption
challenge. See Merck Sharp & Dohme Corp. v. Albrecht, 587
U.S. 299, 315 (2019). Rather, the Court in Merck merely
elaborated on the standard of review for preemption—it is a
question of law, not a question of fact. Id. Indeed, the Court
has not relied on Rice to nix a facial preemption claim in
decades, and it has never done so outside of the antitrust
MONTANA MEDICAL ASSOCIATION V. KNUDSEN 37
context. Similarly, the Ninth Circuit has cited Rice’s
“hypothetical or potential” language just once since Healy II
and has never cited Rice outside of an antitrust context. See
Sanders v. Brown, 504 F.3d 903, 910–11 (9th Cir. 2007).
Interpreting Rice post-Healy II requires some
guesswork. Reading Rice and Healy II side-by-side, it is not
clear that Rice remains good law—particularly given the
dearth of citations in recent decades. But to the extent that
Rice remains instructive, the Court’s message seems to be
that the conflict between state and federal law cannot be too
attenuated, isolated, or uncertain.
III. HB 702
Although I ultimately conclude that Montana Medical
has failed to carry its burden, aspects of this case expose the
cracks in Salerno and Rice. Setting aside the nursing home
exception in Section 49-2-313 and the healthcare facility
exception in Section 49-2-312(3)(b), HB 702 makes it
unlawful to discriminate against a person or change the
conditions of employment based on the person’s vaccination
status. Mont. Code Ann. § 49-2-312(1). This means that a
private pediatrician cannot ensure that her staff is vaccinated
for measles before interacting with newborn patients; 5 a
geriatric specialist cannot ensure influenza or shingles
vaccinations; and an HIV clinic cannot ensure bacterial
pneumonia vaccination. Examples abound. It is often the
immunocompromised who have no choice but to seek
medical care in, for instance, an oncologist office, a lupus
5
The Center for Disease Control explains, “Measles is highly
contagious. If one person has it, up to 9 out of 10 people nearby will
become infected if they are not protected.” About Measles, Center for
Disease Control (May 23, 2024),
https://www.cdc.gov/measles/about/index.html.
38 MONTANA MEDICAL ASSOCIATION V. KNUDSEN
treatment center, or a diabetes specialist’s office. Vaccines
are a fundamental tool in accommodating individuals with
disabilities—people who often interact more frequently with
the healthcare system than others. Indeed, even a juris doctor
can understand how medical providers’ obligations under
the ADA might differ depending on their patient populations
and services.
Are there circumstances in which not discriminating or
adjusting work conditions on the basis of vaccine status pose
no problem under the ADA? Of course. But does HB 702
have a plainly legitimate sweep if it sets an unknowable
number of environments on a crash course with the ADA?
Perhaps not. The above examples are both hypothetical and
also certainly impending. And so, neither the
insurmountable Salerno standard nor the low Rice hurdle
answers the question presented. But the general principles of
preemption do.
To be sure, HB 702 is likely preempted in some
circumstances, but it is Montana Medical’s burden to justify
the scope of the remedy sought. As the majority points out,
“We lack information about specific plaintiffs, specific
health care settings, and other available accommodations
that could satisfy the ADA’s requirements with respect to
any particular disabled person.” I agree. Put simply,
Montana Medical has not shown enough to justify facial
preemption, even under the lower “plainly legitimate sweep”
standard. For these reasons, I concur.