Delaware Attorney General Sues Town over Ordinance Requiring ‘Dignified Disposal’ of Fetal Remains

Dr. Susan BerryJanuary 12, 2022

The attorney general of Delaware has filed a lawsuit against one of her state’s towns for passing an ordinance that requires the “dignified disposal” of the remains of babies who were either aborted or miscarried.

Attorney General Kathy Jennings (D) said the ordinance, passed by the Seaford City Council in a 3-2 vote on December 14, violates state law and is “little more than an expensive publicity stunt,” reported WHYY Tuesday.

It brings me no joy to sue one of our own cities, but three councilmen backed by dark, outside money have left me with no choice. https://t.co/R7U7dDo1Fb

— Attorney General Kathy Jennings (@DE_DOJ) January 11, 2022

The ordinance requires the remains of babies who were either aborted or the results of miscarriage to be buried or cremated.

Opponents claim the ordinance stigmatizes women and girls seeking abortions because it suggests aborted babies are human beings that deserve dignity.

WBOC News reported Wednesday:

State officials also argue, for example, that a fetus that is aborted before 20 weeks of gestation or which weighs less than about 12.5 ounces, is not considered a dead human under Delaware law. Therefore, most elective abortions would not result in a “dead body,” according to Jennings.

A dead body cannot be buried or cremated without a permit, and a permit cannot be issued without a death certificate, and “a death certificate can only be issued for a dead human body,” according to the state’s complaint.

Additionally, the ordinance’s critics argue medical facilities will incur increased costs to bury or cremate fetal remains.

“[T]he Ordinance is but one part of a nationwide effort by interest groups to make it more difficult and costly for pregnant persons to be able to receive lawful reproductive healthcare services, and more difficult for healthcare providers to provide those services,” the lawsuit states, but attempts to make its primary point the contention that the ordinance “is invalid because it is preempted by State law.”

Seaford City Solicitor Daniel Griffith said in the city’s response to the lawsuit:

There are at least 13 states that require fetal remains to be cremated or buried; and the U.S. Supreme Court has upheld the constitutionality of these laws, saying that the government has a legitimate interest in the disposal of fetal remains.

Jennings accused the three councilmen who voted in favor of the ordinance of being “backed by dark, outside money,” WHYY noted.

Seaford’s first Planned Parenthood facility opened days before the vote on the ordinance, reported Delaware News Journal.

Planned Parenthood of Delaware’s Ruth Lytle-Barnaby said in a statement reported by WHYY:

Though the measure purports to be about dignity, it continues the stigma around abortion and would make it harder for patients to access abortion and miscarriage care. Planned Parenthood of Delaware will not stand by as elected officials try to insert themselves into our patients’ most personal decisions, and we continue to support the Department of Justice in pushing back.

According to the News Journal, Jennings said:

The law is clear. Seaford’s ordinance is precluded by State law. This ordinance is part of a national wave of anti-abortion policies funded by extremists who would have our country dragged fifty years into the past. Left unchecked, it threatens serious, irreparable, and unconstitutional harm. And at the end of the day, it will amount to little more than an expensive publicity stunt.

Following approval of the ordinance and subsequent threats of litigation by Jennings and the American Civil Liberties Union (ACLU), the Seaford City Council changed course on December 30 by placing an indefinite stay on its enforcement.

In a joint statement, ACLU of Delaware and Delaware National Organization for Women (NOW) said they “applaud Attorney General Kathy Jennnings’ legal action against Seaford to permanently block the city’s illegal fetal remains ordinance.”

Mike Brickner, executive director of ACLU of Delaware, and Melissa Froemming, president of Delaware NOW, continued:

Unobstructed access to abortion care is vital for Delawareans – especially for our neighbors living in rural parts of the state. At a time when the fate of Roe v. Wade is uncertain nationally, our state laws make it clear: abortion is a guaranteed right in Delaware.

Our coalition stands ready to take action if this ordinance is enforced, or if any other city in Delaware tries to pass a law that would restrict access to abortion. Reproductive services, including abortion, are vital forms of health care. And we won’t back down in making sure access to reproductive health care is available to all.

We, along with @NOW_Delaware, applaud @DE_DOJ’s legal action against Seaford to permanently block the city’s illegal fetal remains ordinance. pic.twitter.com/WjqULqRgta

— ACLU of Delaware (@ACLUDelaware) January 12, 2022

Councilman Matthew McCoy, who voted in favor of the ordinance, initiated the motion to place a stay on its enforcement.

“We’re not ruling on the order itself, but a pathway forward,” McCoy said, according to WHYY. “This decision and other decisions should be made by representation and not in a courtroom via litigation.”

Seaford Councilman James King, who voted against the ordinance, called it “a complete waste of time, energy and resources.”

“We are having conversations around something, in my opinion, that is completely illegal,” King said. “I feel that this ordinance is illegal, unconstitutional, and is a violation of civil rights.”

Griffith, however, said he anticipates “the lawsuit will be dismissed as moot (because the ordinance has been stayed) so that the General Assembly can address this issue.”

“It is disappointing that the AG is using our overcrowded court system and taxpayer money to pit governments against each other,” he added, according to WBOC News.

Lubbock, Texas, became the largest city in the United States to declare itself a “sanctuary city for the unborn,” the 26th in the nation to outlaw abortion. https://t.co/L9bH5NpzXW

— Breitbart News (@BreitbartNews) May 3, 2021

Seaford Mayor David Genshaw also said the debate over the ordinance is not over.

“The stay can be lifted at any time the council chooses,” he said.

Genshaw added the ordinance has nothing to do with global or national issues about abortion, but instead is focused on the values of the local community of Seaford.

“The city of Seaford and the elected have acted in good faith with the state,” he said, according to the News Journal. “But this is a matter that I think is at the core of who we are as people and how do we treat life?”

Currently, 43 municipalities in Texas, Ohio, and Nebraska have passed ordinances outlawing abortion within their city limits, declaring themselves “sanctuary cities for the unborn.”