New York State has long been a state known for its dyed-in-the-wool liberal, social and big government spending policies. Yet for the past decade, while the Democrats have controlled the governor’s mansion and the State Assembly, the State Senate had been in the control of a Republican voting majority. Thus, countless so-called progressive legislative initiatives were passed by the Assembly and supported by the Governor, only to go nowhere. (It should be noted that some in the Assembly during those years may have voted for these initiatives not because they supported them but because they knew the bills would ultimately fail in the Senate.)
But it remained somewhat speculative as to how far Democrats would go once they controlled the governorship and both houses of the legislature – and the pesky Republicans were no longer a significant factor.
The fallout turned out to be stunning. This past November, voters transferred control of the Senate to the Democrats, and the party has moved quickly to enact a very progressive agenda.
Child Victims Act of 2019
One significant, newly passed bill that had been bottled up is the Child Victims Act, which, going forward, allows individuals alleging that they were sexually abused as children to file civil lawsuits against individuals and institutions until they are 55 years old – and file felony criminal charges until their 28th birthday, and until their 25th to bring misdemeanor charges. Under the old law, all lawsuits had to be filed by their 23rd birthday.
The issue of how long some could assert a claim was obviously a pivotal one. Studies were cited by proponents of child abuse legislation which found that abused children often repressed memories of such events so that the typical statute of limitations of 6 years was patently unfair. On the other hand, the ability of claimants to make their cases and the alleged perpetrators to defend against them are surely undermined by the passage of time, i.e., the fading of memories and the availability of witnesses. Indeed, if you do the math, even under the old law, possible gaps in time could be as much as two decades. And, of course, this is even more of a problem with the new, substantially extended deadlines.
But since the enhanced numbers would only apply prospectively, many felt that it was not unfair to incentivize institutions to promptly address any complaints and keep careful records.
The so-called one year “look back” provision in the new law presented a different problem. The new statute created a one-year window from its effective date during which claims that had already passed the old, 23-year limit could be brought with no floor at all. And many of those cases will now come out of the blue, where records no longer exist and witnesses with probative knowledge are no longer alive.
The law is the law and we will have to see how it will be enforced. To be sure, there will be legal and constitutional challenges – getting courts to accept a requirement that an individual has to defend against civil and criminal claims several decades old will not be easy. But the message is clear. Politics can really count in a democracy.
Reproductive Health Act
The abortion bill that was passed last week is essentially the same as legislative proposals that passed for more than a decade in each session of the New York Assembly, only to be rejected by the Republican majority in the Senate.
In truth, the new law, which goes by the name Reproductive Health Act, largely codifies what was already made the law in the United States by virtue of the Supreme Court’s 1973 decision in the Roe v Wade. That decision established a woman’s constitutional right to an abortion and set limits to what a state government could do to restrict that right. But the key is that the state can always impose less restrictions than the Supreme Court has allowed.
So the Democrats’ attempts to amend N.Y. law regarding abortions is somewhat puzzling. Indeed, Governor Cuomo, a principal proponent, said an amendment was necessary in light of President Trump’s appointment of two conservative justices, which, he says, places the New York law in jeopardy. That makes no sense, since New York State could always build upon and surpass the federal minimal requirements.
Under Roe v Wade all women have the right to an abortion at any time in the first 24 weeks of pregnancy. After 24 weeks, Roe would allow an abortion when a woman’s life or health was at risk. Prior to the new law, New York permitted an abortion only when the mother’s life was at risk – not her health.
The new Reproductive Health Act brings New York law closer to the federal standards but appears to be a classic political gesture by Cuomo and his fellow Democrats to take advantage of the November election results with a view to playing to their progressive base. It adds almost nothing to the protections available to female New Yorkers.
The New Transgender Law
Under a new law enacted last week in New York, gender self-identity is now formally recognized as a protected class in the areas of housing, employment, and public accommodations. (In the past, various rules and regulations purported to grant the same rights.) Without putting too fine a point on it, an individual is legally entitled to be accepted as belonging to a gender of his choice, notwithstanding what his physical body says about him.
One of the leaders in the push to get the measure enacted said, “I think the reason that it’s taken so long here in New York is because we have had a [State] Senate that is out of touch with the vast majority of New Yorkers. We’ve had a Senate that’s been dragging its heels, that’s been controlled by Republican legislators for so long….”
Indeed, this sort of legislation has been put forward in the New York State legislature every year since 2003, but invariably thwarted by a Republican -controlled Senate.
The ramifications are enormous, and we leave it to our readers to play out the possible scenarios. Suffice it to say that the political change in Albany has moved this perversion further into the sunlight.