As the days go by and the claims of Governor Andrew Cuomo’s mishandling of New York State’s battle against the coronavirus grow, it is important not to lose the forest for the trees.

Major attention has been paid to the fact that the courts have struck down his highhanded and arbitrary regime of special capacity limits on religious institutions, with some speculating that maybe he harbored some personal animus towards religion. But it is key that some amorphous enabling rules were simply there for him – or any other governor to exploit.

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Of course, Cuomo is also undergoing careful scrutiny of his conduct at the helm of the state’s anti-Covid-19 efforts. Allegations of misconduct have honed in on his requiring nursing homes to accept hospital transfers of corona-infected patients and his subsequent undercounting of the numbers of resulting death.

It is even being alleged that he undercounted because he was intent on keeping his image as the anti-Covid leader intact and he also wanted to avoid diminishing the sales of a book he wrote on the topic. Actually, these are but some of the more serious allegations with even possible criminal exposure. Other allegations include that some of his family and friends were given special access to anti-corona vaccines.

But it is the ordinary discretionary power itself that a N.Y. governor enjoys in emergencies that should concern us equally as much. Thus, when facing complaints that women in labor were being denied the presence of even one support person in the labor and delivery rooms out of fear of the spread of the coronavirus, the governor announced that an executive order would be issued that required all hospitals in New York, both public and private, to allow women to have a partner in the labor and delivery room.

Overall the calculus was complicated. There was a lot of evidence that a partner of some kind would aid in the recoveries of both the mother and baby. On the other hand, it could not be denied that the risk of the introduction of the virus into the hospital via the visitor was no less than comparable exposure outside of the hospital/maternity setting.

So, someone had to decide between the competing concerns and here is what the governor said in his executive order:

By virtue of the authority vested in me by…the Executive Law to issue any directive during a disaster emergency necessary to cope with the disaster, I hereby issue the following directive….

Any…[health care] facility licensed by the state, shall, as a condition of licensure permit the attendance of one support person who does not have a fever at the time of labor/delivery to be present as a support person for a patient who is giving birth.

When the executive order was first issued in March of 2020, it occurred to us at The Jewish Press that a key issue would be who should ultimately decide these sorts of questions involving simple exemptions from general policies that were presumably based upon scientific fact. Put another way, a virus could not be thought to distinguish between a hospital and non-hospital setting when seeking to pounce, as it were.

So, while we were sensitive to the need for the new rule, we were still moved to issue the following caution in an editorial at the time:

It is important that government assertions of power be looked at through some judicial process…. Lawful process matters and emergency orders, if left unchallenged, will evolve into precedents with horrifying consequences. We note the seemingly arbitrariness of the order issued by Governor Andrew Cuomo requiring all hospitals in New York to allow women to have a partner in the labor and delivery rooms while nothing similar is allowed in physically similar but non-maternity settings. Indeed, the measure was a response to a decision by two major NY hospitals to ban support people from labor and delivery rooms because of the coronavirus pandemic.

An arbitrary and dangerous distinction? Indeed. But then the governor has a lot to be concerned with and needs leeway, but it does rather tend to make our point that he must be circumscribed lest he be the sole arbiter of which societal interest is less important than another.

Happily, as witness the merciless beating the governor has take in the federal court over the arbitrary restrictions on attendance at religious institutions he had imposed, the courts can still sometimes be relied on, a least for the moment, to rein in any mindless anti-religious or other bias. Maybe one of the lessons of the Cuomo administration is that the currently untrammeled power a New York governor enjoys should be tempered with a heavy dose of legislative oversight.

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