Macdonald v. Oregon Health and Science University

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRITTANY K. MACDONALD, No. 24-4852 D.C. No. Plaintiff - Appellant, 3:22-cv-01942-IM v. OREGON HEALTH AND OPINION SCIENCE UNIVERSITY, A Public Corporation and Governmental Entity; WAYNE MONFRIES, An Individual; RUTH BEYER, An Individual; MAHTAB BRAR, An Individual; JAMES A. CARLSON, An Individual; DANNY JACOBS, An Individual; SUSAN KING, An Individual; CHAD PAULSON, An Individual; SUE STEWARD, An Individual; STEVE ZIKA, An Individual; DOES, 1-50, inclusive, Defendants - Appellees. Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding 2 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY Argued and Submitted June 9, 2026 Seattle, Washington Filed October 2, 2026 Before: Michael Daly Hawkins and Eric C. Tung, Circuit Judges, and Kiyo A. Matsumoto, District Judge. * Opinion by Judge Matsumoto; Dissent by Judge Tung SUMMARY ** COVID-19 Vaccination Policy / Free Exercise / Title VII The panel affirmed (1) the district court’s dismissal, on qualified immunity grounds, of Brittany K. MacDonald’s Free Exercise claim; and (2) the district court’s summary judgment for Oregon Health and Science University (“OHSU”) on MacDonald’s Title VII failure to accommodate claim, in her action challenging the denial of her request for a religious exemption from a COVID-19 vaccination policy. Pursuant to Executive Order No. 21-29 issued by Oregon Governor Kate Brown, which required all healthcare workers in Oregon’s healthcare facilities to be vaccinated * The Honorable Kiyo A. Matsumoto, United States District Judge for the Eastern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 3 against COVID-19, OHSU required all OHSU personnel to be vaccinated by October 18, 2021, unless an individual received an approved religious or medical exemption. An email notice sent to employees who had requested an exemption provided examples of beliefs that do not qualify for a religious exemption, including “[a]n objection to the vaccine on the basis of fetal cell concerns, either in the vaccines or in testing and development.” MacDonald, who was a registered nurse at Doernbecher Children’s Hospital of OHSU, requested a religious exemption, asserting, in part, that her “beliefs regarding the sanctity of life conflict directly with any requirement to inject abortion derived cell lines into [her] body.” After her exemption request was denied, and she was terminated for failing to be vaccinated, MacDonald filed suit alleging (1) a 42 U.S.C. § 1983 Free Exercise claim against individuals who served on the OHSU Board of Directors and members of OHSU’s Vaccine Exception Review Committee (collectively, the “Individual Defendants”); and (2) a 42 U.S.C. § 2000e-2(a)(1) Title VII failure to accommodate her religious beliefs claim against OHSU. The panel held that the Individual Defendants were entitled to qualified immunity on MacDonald’s Free Exercise claim because the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations due to allegedly religious concerns about fetal cells and bodily integrity or sanctity was not clearly established at the time the Individual Defendants denied MacDonald’s religious exemption. The panel next affirmed the district court’s summary judgment for OHSU on MacDonald’s Title VII failure to accommodate claim because OHSU demonstrated that it 4 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY could not have accommodated Macdonald without undue hardship. OHSU’s evidence established that the health and safety risks posed to OHSU’s patients and employees presented a substantial hardship in the context of its business, and accommodating MacDonald would have imposed substantial operational and financial costs on OHSU. Addressing MacDonald’s pretext arguments, the panel wrote that there is no precedent that imports a “pretext” or “discriminatory motives” analysis into the “undue hardship” failure to accommodate analysis. And even if pretext were a part of the analysis, MacDonald failed to present a triable issue of material fact establishing that OHSU’s demonstrated substantial economic and noneconomic costs in allowing MacDonald to work while unvaccinated were mere pretext. Dissenting, Judge Tung wrote that the defendants’ conduct here plainly violated established law prohibiting the targeting of a person’s religious beliefs. The policy singled out an employee’s religious objection to abortion and the use of fetal tissue as categorically undeserving of any consideration, which is a classic case of the State targeting religious beliefs and is never permissible. Because MacDonald had a right to be free from the State’s targeting of her religious belief (against the use of aborted fetal cells) by deeming such a belief not “religious” at all and thus not worthy of consideration for an exemption, the Defendants should have been denied qualified immunity.  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 5 COUNSEL Ray D. Hacke (argued), Pacific Justice Institute, Salem, Oregon; Matthew B. McReynolds, Pacific Justice Institute, Sacramento, California; for Plaintiff-Appellant. Whitney A. Brown (argued), Stoel Rives LLP, Anchorage, Alaska; Alex Van Rysselberghe, Thomas R. Johnson, Rachelle Collins, and Brenda K. Baumgart, Stoel Rives LLP, Portland, Oregon; for Defendants-Appellees. OPINION MATSUMOTO, United States District Judge for the Eastern District of New York, sitting by designation: We must decide (i) whether it was clearly established as of 2021 that the denial of a mandatory COVID-19 vaccine exemption request based on “fetal cell” and “bodily integrity and sanctity” concerns violates the Free Exercise Clause of the First Amendment such that qualified immunity does not apply to individual officers of Oregon Health and Science University (“OHSU”); and (ii) whether Defendant OHSU demonstrated that it could not have provided a COVID-19 vaccine exemption accommodation to a registered nurse in the Mother Baby Unit (“MBU”) of the Doernbecher Children’s Hospital of OHSU without undue hardship. We affirm the district court’s decision that (i) qualified immunity applies to Plaintiff’s Free Exercise claim; and (ii) OHSU was entitled to summary judgment on Plaintiff’s Title VII failure to accommodate claim because OHSU 6 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY demonstrated it could not accommodate Plaintiff without undue hardship. BACKGROUND In the fall of 2021, Plaintiff-Appellant Brittany K. MacDonald (“MacDonald”) was a registered nurse in the MBU of the Doernbecher Children’s Hospital of OHSU who had worked there since October 8, 2012. The MBU provides intensive care to pregnant mothers, newborns and immunocompromised patients with critical conditions, including cancer. MBU registered nurses must be in direct physical contact with, or close proximity to, their patients because MBU registered nurses provide direct care such as feeding, bathing, diapering, administering medications, responding to emergencies, and assisting mothers with holding and breastfeeding their babies. MacDonald is a practicing Christian who opposes abortion. OHSU had previously accommodated MacDonald’s religious preference to not participate in performing abortions. OHSU is Oregon’s largest public hospital system and only public academic health institution. In 2021, OHSU employed approximately 20,000 employees and cared for approximately 330,000 patients. The Oregon State legislature created OHSU and charged OHSU with “serv[ing] the people of the State of Oregon” and delivering health care “in the manner that . . . best promotes the public welfare of the people of the State of Oregon.” Or. Rev. Stat. § 353.030(1), (4). COVID-19 is a disease caused by the SARS-CoV-2 virus and was declared a global pandemic in March 2020. SARS- CoV-2 evolved and mutated into different variants including the highly transmissible Delta variant in the summer of 2021. The Delta variant was more contagious than prior variants,  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 7 involved a significantly higher risk of severe disease and hospitalization, and surged between June and September 2021—at its peak, the Delta variant claimed 1,500 American lives per day. The risk of Delta transmission was especially high in hospitals where social distancing between healthcare workers and patients was often not possible. The Centers for Disease Control and Prevention, World Health Organization, Food and Drug Administration and Centers for Medicare & Medicaid Services recommended vaccines as the best way to protect against COVID-19. In response to the deadly Delta variant in August 2021, Oregon Governor Kate Brown issued Executive Order No. 21-29, which required all healthcare workers in Oregon’s healthcare facilities to be vaccinated against COVID-19 by October 18, 2021, and prohibited OHSU from allowing any unvaccinated healthcare employee to continue to work for OHSU after October 18, 2021 (the “Vaccine Mandate”). See Or. Admin. R. 333-019-1010 (2021). To comply, OHSU required all OHSU personnel to be vaccinated by October 18, 2021, unless an individual received an approved religious or medical exemption. The Vaccine Exception Review Committee (the “Review Committee”) reviewed and decided all requests for religious exemptions. On September 19, 2021, MacDonald submitted a religious exemption request to OHSU and attached a five- page document with her responses to the request form’s three questions. MacDonald asserted that her “body was the temple of the Holy Spirit” and her “beliefs regarding the sanctity of life conflict directly with any requirement to inject abortion derived cell lines into [her] body.” She also asserted that she was “moved by the Holy Spirit to reject the vaccine repeatedly” and received “divine guidance” from God to reject the COVID-19 vaccine. 8 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY On September 30, 2021, OHSU sent an email notice to employees and supervisors of employees who had requested an exemption. The email notice stated that “each review” required “a high level of individual assessment by multiple reviewers.” The email also “shar[ed] further detail on OHSU’s narrow criteria for exemption approvals,” which “ha[d] been set to help OHSU keep [its] members and those [it] served safe” to help guide decision-making because OHSU “expect[ed] very few of the submitted requests for religious exemptions to be approved.” The email notice provided notice of “[e]xamples of beliefs that do not qualify for a religious exemption” including: Concerns over vaccine safety or content. • These are not religious arguments and often inconsistent with proven facts. An objection to the vaccine on the basis of fetal cell concerns, either in the vaccines or in testing and development. • These professed beliefs are personal moral choices and/or conscientious objections rather than a tenet of a religious faith. • No fetal tissue or cells are contained in any of the vaccines currently available under FDA approval or emergency use authorization in the U.S. • While they played no role in their development or production, HEK-293 cell lines created over 50 years ago were used in confirmatory testing of the current mRNA vaccines. Cells from the same line have commonly been used in  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 9 biologic research since the late 70s. This cell line is used in the testing of many common medicines, including Tylenol, Advil, Aspirin, Claritin, Benadryl, Pepto- Bismol, Mucinex, Turns and Prilosec, among many others. A personal revelation from God about the vaccine, an objection to the vaccine based upon bodily integrity or sanctity, and/or a belief that the vaccine is “unclean.” • These are personal moral choices and/or conscientious objection rather than a tenet of a religious faith. A vaccine exemption would be provided to those who “demonstrate[d] a sincerely held religious belief and past behavior consistent with that belief.” On October 7, 2021, OHSU sent MacDonald an email informing MacDonald that the Review Committee had denied MacDonald’s request for a religious exemption. This email did not provide individualized reasons for denying MacDonald’s request but stated that the “vast majority” of “denials were because the requestor did not meet the legal requirements for a religious exemption but instead stated personal beliefs or conscientious objections as opposed to a fundamental tenet of a religious faith.” The Committee again provided examples of beliefs that did not qualify for religious exemption including: “concerns over vaccine safety or content,” “an objection to the vaccine on the basis of fetal cell concerns,” a “personal revelation from God about the vaccine,” and “an objection to the COVID vaccine based upon bodily integrity or sanctity and/or a belief that the vaccine is ‘unclean.’” OHSU’s October 7, 2021 email 10 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY informed MacDonald that if she was not vaccinated against COVID-19 by October 18, 2021, she could not “continue to work” at OHSU. MacDonald failed to be vaccinated against COVID-19 and was terminated on December 2, 2021. On December 15, 2022, MacDonald filed her complaint in the district court alleging two causes of action: (1) a 42 U.S.C. § 1983 Free Exercise claim against: (a) individuals who served on the OHSU Board of Directors (the “Board Defendants”) who allegedly established OHSU’s policies and protocols regarding religious exemptions from the Vaccine Mandate, and (b) members of OHSU’s Vaccine Exception Review Committee (“VERC Defendants,” together with the Board Defendants, the “Individual Defendants”) who allegedly reviewed and evaluated medical and religious exemption requests, (the “Free Exercise Claim”); and (2) a 42 U.S.C. § 2000e-2(a)(1) Title VII failure to accommodate her religious beliefs claim against OHSU. On August 28, 2023, the district court granted the Individual Defendants’ motion to dismiss MacDonald’s Free Exercise Claim and request for declaratory relief with prejudice but denied OHSU’s motion to dismiss MacDonald’s Title VII claims. The district court held that the Individual Defendants were entitled to qualified immunity on MacDonald’s Free Exercise Claim because “the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations due to allegedly religious concerns about ‘fetal cells’ and ‘bodily integrity or sanctity’ was not clearly established at the time the Individual Defendants denied Plaintiff’s religious exemption.” The district court denied and dismissed Plaintiff’s request for declaratory relief as retrospective and barred by the Eleventh Amendment.  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 11 The district court subsequently granted OHSU’s motion for summary judgment on MacDonald’s Title VII claim. The district court granted summary judgment because OHSU demonstrated that if it had accommodated MacDonald, OHSU would have suffered “undue hardship” through “substantial increased cost[s]” and the risk of losing personnel and patients to illness. STANDARD OF REVIEW We review a district court’s grant of a motion to dismiss and issues of qualified immunity de novo. Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018) (citation modified). “[W]e consider whether the complaint alleges sufficient facts, taken as true, to support the claim that the officials’ conduct violated clearly established constitutional rights of which a reasonable officer would be aware ‘in light of the specific context of the case.’” Id. at 1235 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). We review the district court’s summary judgment decision “de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to the non- moving party.” Petersen v. Snohomish Reg’l Fire & Rescue, 150 F.4th 1211, 1215 (9th Cir. 2025) (citation modified). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). 12 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY DISCUSSION I. MacDonald’s Free Exercise Claim and Qualified Immunity A. The Qualified Immunity Legal Framework “Qualified immunity attaches when an official’s conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” White v. Pauly, 580 U.S. 73, 78–79 (2017) (quoting Mullenix, 577 U.S. at 11). Qualified immunity protects “‘all but the plainly incompetent or those who knowingly violate the law.’” White, 580 U.S. at 79 (quoting Mullenix, 577 U.S. at 12). Although “a case directly on point” is not required, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation modified). “The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (citation omitted), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In evaluating a grant of qualified immunity, courts consider whether the alleged government conduct violated (1) a constitutional right, and (2) “clearly established law” such that a reasonable officer would be on notice that such alleged misconduct was unlawful. Pearson, 555 U.S. at 232, 244 (citing Saucier, 533 U.S. at 201). After Pearson, we are no longer required to first engage in an analysis of whether the facts in a complaint alleged a constitutional violation because “[t]he procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,”  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 13 and “[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.” 555 U.S. at 236–37. In other words, “[e]ither question may be addressed first, and if the answer to either is ‘no,’ then the state actor cannot be held liable for damages.” Gordon v. County. of Orange, 6 F.4th 961, 968 (9th Cir. 2021) (citing Pearson, 555 U.S. at 236). We affirm the district court’s finding that qualified immunity applies to MacDonald’s Free Exercise Claim because “the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations due to allegedly religious concerns about ‘fetal cells’ and ‘bodily integrity or sanctity’ was not clearly established at the time the Individual Defendants denied Plaintiff’s religious exemption.” Because our holding on the “clearly established” qualified immunity prong is dispositive in favor of the Individual Defendants’ qualified immunity defense, we need not consider whether the alleged government misconduct violated a constitutional right under the general rule of constitutional avoidance. See Pearson, 555 U.S. at 236, 241 (holding that courts no longer were required to address as the “initial inquiry” whether an “officer’s conduct violated a constitutional right” before deciding whether the right at issue was clearly established because, amongst other reasons, requiring courts to decide on the constitutional question first “departs from the general rule of constitutional avoidance”). 14 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY B. There Was No Clearly Established Law in 2021 that Provided Fair Notice to the Individual Defendants that Their Actions Violated the Free Exercise Clause i. The “Clearly Established” Legal Standard The “clearly established” inquiry turns on the “objective legal reasonableness of the [government] action, assessed in light of the legal rules that were clearly established at the time it was taken.” Pearson, 555 U.S. at 244 (citation modified). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ [such] that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The “dispositive inquiry” is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). The Supreme Court has thus continued to “reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’” White, 580 U.S. at 79 (quoting Ashcroft, 563 U.S. at 742). We consider whether the alleged facts “support the claim that the officials’ conduct violated clearly established constitutional rights of which a reasonable officer would be aware, ‘in light of the specific context of the case, . . . not as a broad general proposition.’” Keates v. Koile, 883 F.3d 1228, 1235, 1239 (9th Cir. 2018) (quoting Mullenix, 577 U.S. at 12). “Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 15 liability simply by alleging violation of extremely abstract rights.’” White, 580 U.S. at 79 (quoting Anderson, 483 U.S. at 639). That we look to “the specific context” of MacDonald’s allegations under the “clearly established” prong, Mullenix, 577 U.S. at 12, comports with the Supreme Court’s Free Exercise framework. The Free Exercise Clause of the First Amendment protects free exercise of religion from government interference, see Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940), but any “burden” on “religious exercise” does not “presumptively violate” the Free Exercise Clause. Youth 71Five Ministries v. Williams, 160 F.4th 964, 978 (9th Cir. 2025). “Under [Supreme Court] precedents, the government is generally free to place incidental burdens on religious exercise so long as [the government] does so pursuant to a neutral policy that is generally applicable,” and the government action is rationally related to a legitimate government interest. Mahmoud v. Taylor, 606 U.S. 522, 564 (2025) (citing Emp. Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878–79 (1990)). Conversely, if a government action is not neutral or generally applicable, it triggers “strict scrutiny,” which requires that the government action be “justified by a compelling state interest” and “narrowly tailored in pursuit of that interest” to avoid a Free Exercise violation. Id. at 564 (citation modified). Thus, for the Individual Defendants to be on notice that their actions would violate the Free Exercise Clause such that they are not covered by qualified immunity, there must be “clearly established” law that the facts here violate a “clearly established” Free Exercise right under the applicable standard of review. We also examine whether there are factually similar cases to determine if the alleged constitutional Free Exercise 16 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY right was “clearly established” at the time of the challenged conduct. A.K.H. ex. rel. Landeros v. City of Tustin, 837 F.3d 1005, 1013 (9th Cir. 2016) (“To determine whether [the officer] violated clearly established law, we look to ‘cases relevant to the situation [the officer] confronted.’” (quoting Brosseau v. Haugen, 543 U.S. 194, 200 (2004))). Courts may not deny qualified immunity based on cases post-dating the time of the alleged act “[b]ecause the focus is on whether the officer had fair notice that her conduct was unlawful,” Kisela v. Hughes, 584 U.S. 100, 104 (2018), so we “turn[] to Supreme Court and Ninth Circuit law existing at the time of the alleged act” in 2021, Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citation modified). ii. MacDonald’s Allegations of the Individual Defendants’ Misconduct The “right to [free exercise of religion] is quite clearly established by the [First Amendment],” “[b]ut if the test of ‘clearly established law’” was “applied at this level of generality,” it would “transform[] a guarantee of immunity” “into a rule of virtually unqualified liability” as long as plaintiffs “alleg[e] violation of extremely abstract rights.” Anderson, 483 U.S. at 639 (explaining principle in the Due Process context). To “define the contours of the right allegedly violated” we look to “what is really being litigated.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000). Unlike many Free Exercise claims, MacDonald’s challenge is not to the passing or enforcement of a law or regulation that burdens her free exercise of religion, but to the Individual Defendants’ failure to grant her an exemption to a legal requirement for state healthcare employees to be vaccinated for COVID-19 amid a global pandemic. See e.g.,  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 17 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah., 508 U.S. 520, 532–47 (1993). MacDonald’s allegations against the individual Board Defendants and the VERC Defendants slightly differ. 1 MacDonald alleges that the VERC Defendants violated her Free Exercise rights by denying MacDonald a vaccine exemption and forcing MacDonald to choose between her employment in the MBU or following her religious beliefs. MacDonald does not allege that the Board Defendants denied her vaccine exemption request but alleges that the Board Defendants “were, collectively responsible for establishing policies and protocols aimed at ensuring the health and safety of OHSU’s employees and patients during the COVID-19 pandemic” and “expressed overt hostility toward the religious beliefs of certain OHSU employees.” MacDonald also alleges that the “Board Defendants effectively declared that because multiple high-profile religious organizations had expressed approval of COVID-19 vaccines despite their connection to abortion,” MacDonald had “no excuse” for failing to 1 We respectfully disagree with the dissent’s inclusion of OHSU as a defendant in its qualified immunity analysis, to the extent the dissent does so, because MacDonald asserts a Free Exercise Claim only against the Individual Defendants—not against OHSU. Moreover, even if MacDonald did assert a Free Exercise Claim against OHSU, a Free Exercise claim against OHSU is not proper because, as correctly observed by the district court, OHSU “is an arm of the state and is entitled to sovereign immunity under the Eleventh Amendment.” MacDonald v. Oregon Health & Sci. Univ., No. 3:22-CV-01942-IM, 2024 WL 3316199, at *5 n.2 (D. Or. July 5, 2024) (quoting United States ex rel. Doughty v. Or. Health & Scis. Univ., No. 3:13-CV-01306-BR, 2017 WL 1364208, at *3 (D. Or. Apr. 11, 2017) (“Every court that has addressed the issue and conducted an arm-of-the-state analysis has concluded OHSU is an arm of the State of Oregon entitled to Eleventh Amendment immunity.”) (collecting cases)). 18 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY vaccinate and “pressure[ed] Plaintiff to conform to the prevailing approved religion.” 2 MacDonald’s allegations regarding the Individual Defendants’ misconduct are sparse, 3 but essentially allege that the Individual Defendants engaged in impermissible religious hostility toward her beliefs by denying her a religious exemption based on her “fetal cell” and “bodily integrity or sanctity” objections to the COVID-19 vaccine. MacDonald fails, however, to allege any facts to support her conclusory claim that the September 30, 2021 email notice stating that vaccine objections based on “fetal cell” and “bodily integrity or sanctity” beliefs would not receive a religious exemption because these were “personal moral 2 It is not apparent that MacDonald sufficiently alleged that the Board Defendants were “integral participants in the unlawful conduct” as required for a constitutional violation under 42 U.S.C. § 1983. Keates, 883 F.3d at 1241. MacDonald does not allege that the Board Defendants denied her exemption request but only that the VERC Defendants did so. MacDonald alleges that “OHSU circulated to its employees” the September 30, 2021 email notice but does not allege that the Board Defendants personally authored, ratified, or enforced the September 30, 2021 email notice. MacDonald alleges that the VERC Defendants denied her exemption request “pursuant to polices established by the Board Defendants” but fails to identify the policies the Board Defendants set, or allege that the Board Defendants personally drafted, reviewed, or ratified any specific policies. But for the purposes of the analysis here, we assume, arguendo, that MacDonald has alleged that the Board Defendants were “integral participants in the unlawful conduct.” Keates, 883 F.3d at 1241. 3 Other than OHSU’s October 7, 2021 email informing MacDonald that the Review Committee had denied MacDonald’s request for a religious exemption, MacDonald’s hostility allegations rely solely on the September 30, 2021 email notice OHSU sent to employees who had requested an exemption that provided “[e]xamples of beliefs that do not qualify for a religious exception.”  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 19 choices” demonstrates that the Individual Defendants were motivated by “overt hostility” in denying MacDonald an exemption. To the contrary, the September 30, 2021 email demonstrates an attempt to counter and correct misinformation about the COVID-19 vaccine, by informing employees that “no fetal tissue or cells are contained in any of the [COVID-19] vaccines”; “HEK-293 cell lines created over 50 years ago were used in confirmatory testing of the current mRNA vaccines” but “played no role in their development or production”; and “[c]ells from the same line have commonly been used in biologic research since the late 70s,” and are “used in testing of many common medicines, including Tylenol, Advil, Aspirin, Claritin, Benadryl, Pepto- Bismol, Mucinex, Tums and Prilosec, among many others.” MacDonald failed to allege any facts to contest the accuracy of these statements combatting misinformation or to support her conclusory claim that the Individual Defendants were motivated instead by religious hostility in denying her exemption request. At bottom, MacDonald alleges that the Individual Defendants infringed on MacDonald’s right to refuse a COVID-19 vaccine and continue to work in close-contact with medically vulnerable patients—including newborns, pregnant women, postpartum mothers, and patients undergoing cancer treatment—during the height of a deadly, global, COVID-19 pandemic, based on her religious beliefs regarding “fetal cells,” and “bodily integrity and sanctity” concerns. At the time the Individual Defendants denied MacDonald an exemption, there was no case, much less a body of case law, that clearly established a healthcare worker’s Free Exercise right to an exemption from a state- law mandated vaccine based on religious objections at the height of a global pandemic. 20 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY iii. Application None of the three cases MacDonald cites regarding the COVID-19 pandemic or vaccine mandates—Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam), Jacobson v. Massachusetts, 197 U.S. 11 (1905), or Keene v. City & County of San Francisco, No. 22- 16567, 2023 WL 3451687 (9th Cir. May 15, 2023)— “clearly establishes” that MacDonald had a right to a religion-based vaccine exemption. Roman Catholic involved a direct Free Exercise challenge to the New York Governor’s Executive Order regarding COVID-19 group gathering restrictions—not vaccine mandates—that expressly “single[d] out houses of worship for especially harsh treatment.” 592 U.S. at 17. 4 By contrast, here, the Individual Defendants did not single out religion for “especially harsh treatment,” but rather, favorable treatment because individuals with vaccine objections based in secular beliefs did not have access to any exemption process. Id. MacDonald’s reliance on Jacobson v. Massachusetts, 197 U.S. 11 (1905) is also misplaced; the case instead undermines MacDonald’s position. In Jacobson, the Supreme Court upheld a smallpox vaccine mandate where the plaintiff claimed the mandate violated his Fourteenth Amendment right to liberty. 197 U.S. at 27–30. The Supreme Court noted that failing to uphold the vaccine mandate would “strip the legislative department of its 4 In November 2022, over a year after the Individual Defendants denied MacDonald’s exception request, this Court observed that even in Roman Catholic’s “pandemic closures” context, the law was not yet clearly established because “[t]he debate over pandemic closures and the Free Exercise Clause continued—and continues—even after Roman Catholic Diocese was decided.” Horizon Christian Sch. v. Brown, No. 21-35947, 2022 WL 17038695, at *2 (9th Cir. Nov. 17, 2022).  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 21 function to care for the public health and the public safety when endangered by epidemics of disease.” Id. at 37. The Jacobson Court recognized that the government has an interest in “preventing the spread of [disease] . . . to protect the public health.” Id. at 30–31. Years later, the Roman Catholic Court reiterated the same interest. 592 U.S. at 18 (“[s]temming the spread of COVID–19 is unquestionably a compelling interest”). Protecting public health and safety remains a compelling government interest. Neither of these two cases “clearly establishes” MacDonald’s alleged right to a religious exemption to a legal mandate requiring healthcare workers to be vaccinated during a global pandemic while working with vulnerable populations in a hospital setting. Keene v. City & County of San Francisco also fails to support MacDonald’s position because Keene was decided almost two years after the Individual Defendants denied MacDonald an accommodation. No. 22-16567, 2023 WL 3451687, at *1 (9th Cir. May 15, 2023). The Individual Defendants’ actions thus cannot be assessed under Keene because Keene was not “law at the time of the conduct.” Kisela, 584 U.S. at 104. Keene, moreover, did not address qualified immunity, the Free Exercise Clause, or a motion to dismiss. In Keene, the plaintiffs asserted Title VII failure to accommodate claims after they were denied religious exemptions to the defendants’ vaccine mandate and moved for a preliminary injunction requiring the City and County of San Francisco to accommodate their religious beliefs. Keene, 2023 WL 3451687, at *1. The Keene panel held that the district court erred in evaluating the first prong of a Title VII failure to accommodate prima facie case—whether an employee has a bona fide religious belief—by concluding that neither “Plaintiff ha[d] demonstrated that their religious beliefs are sincere or that those beliefs conflict with 22 MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY receiving the COVID-19 vaccine.” Id. at *2. Although “an assertion of a sincere religious belief is generally accepted” in the Title VII failure to accommodate prima facie analysis, id., the district court’s failure to properly assess a Title VII failure to accommodate prima facie case has no bearing on the qualified immunity analysis for a Free Exercise claim. MacDonald’s other cited cases involve substantially different facts and do not articulate a clearly established right under the Free Exercise Clause in the circumstances of her case. See Lukumi, 508 U.S. at 532–47 (holding that a city ordinance that allowed non-religious animal killing but prohibited ritual animal sacrifice targeted the Santeria religion, served no compelling government interest, was not narrowly tailored, and violated the Free Exercise Clause); Masterpiece Cakeshop Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 634 (2018) (holding that the Colorado state commission violated the Free Exercise Clause when it concluded that a baker was required under state law to create cakes for a same-sex wedding because the commission showed “clear and impermissible hostility” to baker’s religious beliefs in public meetings and upheld as lawful other bakers’ refusal to create cakes with images stating disapproval of same-sex marriage with religious text). MacDonald’s reliance on these factually distinct Free Exercise cases demands analysis of the alleged constitutional violation at an impermissibly “high level of generality” and “avoids the crucial question” of “whether the official acted reasonably in the particular circumstances that he or she faced,” which the Supreme Court has “repeatedly stressed” we may not do. District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (citing Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Similarly, MacDonald’s cases regarding the denial of unemployment benefits and contraceptive mandates present  MACDONALD V. OR HEALTH & SCIENCE UNIVERSITY 23 substantially distinct and inapposite factual circumstances and legal claims and thus, did not provide fair notice to the Individual Defendants. See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 719 (1981) (holding that state could not withhold unemployment benefits from someone who left a job because his religious beliefs would not allow him to make weapons); Sherbert v. Verner, 374 U.S. 398, 401–02 (1963) (holding same for individual who had refused work based on the individual’s religious beliefs); Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 835 (1989) (holding same and noting that “there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion” but “[n]o such interest has been presented here”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 736 (2014) (analyzing only the Religious Freedom Restoration Act of 1993 (“RFRA”) in holding that a government regulation requiring private employers to pay for contraceptives violated RFRA); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 687 (2020) (holding that the interim final rules exempting employers with religious or moral objections from contraceptive mandate were proper under Administrative Procedures Act rulemaking procedures). These cases failed to provide any notice t