Week in Review

IN THE NEWS

• Voters in seven states approved ballot measures protecting the right to abortion. Voters in Arizona and Missouri overturned their states’ abortion bans, while citizens in Colorado, Maryland, Montana, and New York voted to either affirm or expand existing abortion access. In Florida, Nebraska, and South Dakota, however, voters rejected similar constitutional amendments, keeping their state abortion bans intact. These three states are the first to defeat referendums expanding the right to abortion since the U.S. Supreme Court ended the constitutional right to the procedure in 2022.
• A federal judge denied a bid by Republicans to block seven counties in Georgia from accepting certain absentee ballots returned after the early voting deadline in the state. Every county in question was historically Democratic-leaning. U.S. District Judge Stan Baker emphasized that ruling in favor of the bid would invalidate votes based on “cherry picking” political preferences of citizens in the counties. Despite the ruling allowing the counting of these absentee votes, Republican Donald Trump still won the state in the presidential election.
• Massachusetts voters approved a ballot measure allowing app-based rideshare drivers to unionize while maintaining their classification as independent contractors. The initiative, backed by the Service Employees International Union, grants drivers collective bargaining power and a complaint process, though it omits full employee protections such as strike rights. Major rideshare companies Uber and Lyft chose not to campaign against the referendum, but still expressed concerns over its wording. “With the passage of this ballot measure,” Lyft reportedly said in a statement, “we look forward to working collaboratively on its implementations and addressing some of the language concerns we have during the legislative session next year.”
• The S. Court of Appeals for the Tenth Circuit rejected a challenge to a 2023 Colorado bill that raises the age to purchase firearms to 21. Senate Bill 169 creates a misdemeanor offense for those who sell guns to individuals under 21 years old and for those under 21 to purchase a gun. Judge Richard E.N. Federico emphasized that an age-based restriction on the commercial sale of firearms does not hinder the Second Amendment right to “keep and bear” arms. Judge Carolyn B. McHugh found that the right to keep and bear arms included the commercial acquisition of guns but noted that Colorado met that constitutional test.
• A federal judge refused to approve a proposed settlement by the Equal Employment Opportunity Commission to a major trade union in a 53-year-old race discrimination lawsuit. The court ruled that because the New York City division of the International Association of Bridge, Structural, Ornamental, and Reinforcing Ironworkers failed to keep records of the hours worked by different races, the organization could not show its compliance with a court-supervised agreement entered into in 1978. Refusing proposed settlements is unusual for judges in these types of cases. The case remains on track for an eventual trial after 53 years of the litigation process.

WHAT WE’RE READING THIS WEEK

• In an essay in the Minnesota Law Review, Delaram Takyar, a Skadden Fellow at the Tennessee Justice Center, critiqued the failure of the S. Department of Health and Human Services (HHS) to uphold Congress’s 1989 Medicaid Equal Access mandate. Takyar argued that despite multiple rule proposals, HHS’s focus remains limited to transparency and data collection rather than ensuring Medicaid recipients have access comparable to that of privately insured patients. She called for concrete enforcement mechanisms and universal standards to improve provider access for Medicaid beneficiaries.
• In an article in the Environmental Law Reporter, Carolina Arlota, a nonresident fellow at the Sabin Center for Climate Change Law, and Michael Gerrard, the Andrew Sabin Professor of Professional Practice at Columbia University Law School, discussed the feasibility of transporting and permanently storing carbon dioxide in the United States. This process, known as sequestration, is regulated by federal law, primarily the Infrastructure Investment and Jobs Act. International treaties and other federal laws also apply to sequestration, but do not provide significant hurdles, according to Arlota and Gerrard. Arlota and Gerrard concluded that the current regulatory landscape does not impose significant purity or source of carbon dioxide standards that could serve as barriers to carbon dioxide sequestration. Likewise, state laws and regulations in potential host states Louisiana, North Dakota, Wyoming, and Texas were also found by Arlota and Gerrard not to impose any such standards.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Kevin T. Frazier, an assistant professor of law at Thomas University Benjamin L. Crump College of Law, examined the U.S. Constitution’s Guarantee Clause—which guarantees every state a “republican form of government”—as a potential framework for limiting corporate power. He argued that “massive corporations,” particularly tech giants, undermine American self-governance by creating economic dependence that resembles the colonial subjugation rejected by the Constitution’s framers. Frazier proposed that the Guarantee Clause could compel states and federal entities to use antitrust enforcement against monopolies, suggesting this “Antitrust Guarantee” would protect the public from the anti-republican influences of multinational corporations.