SEAFORD, Del.- Delaware Attorney General Kathy Jennings on Tuesday filed a lawsuit against the City of Seaford for passing what Jennings claims is an "anti-choice ordinance."
The ordinance, passed on Dec. 14 and scheduled to become effective on Jan. 22, would require anyone who has a surgical abortion at an “abortion facility” or a miscarriage at a “health care facility” to have the fetal tissue interred or cremated at their own expense.
“It brings me no joy to sue one of our own cities,” said Jennings, who added that Seaford’s ordinance is "precluded" by state law.
On Aug. 24, Planned Parenthood of Delaware confirmed that it was opening a new clinic in Seaford, the first such clinic in Sussex County since a Rehoboth Beach location closed in September 2011, and only the second clinic on the Delmarva Peninsula south of Dover. According to the attorney general's lawsuit, anti-choice protests were already taking place regularly at the Seaford site when, on Sept. 28, the Seaford City Council reviewed a draft of the anti-abortion ordinance. The council scheduled a vote on the ordinance on Oct. 12, but delayed that vote after Jennings and the ACLU of Delaware raised concerns about its constitutionality.
Jennings said that on Dec. 14, despite several warnings that the proposal was contrary to state law, the Seaford City Council passed the ordinance with a promise that an anonymous outside donor would fund the defense against the state’s coming lawsuit.
Jennings and the ACLU of Delaware immediately issued statements that they intended to file litigation. On Dec. 30, the Seaford City Council voted to “stay enforcement” of the ordinance, but not the ordinance’s effectiveness. Unlike a judicial stay, the City Council can lift its own self-imposed “stay” at any time, with minimal notice, and enforce the ordinance immediately.
The state argues that Seaford’s ordinance is preempted by state law, not only under specific laws (including state regulation of the treatment and disposition of human remains and pathological waste, including fetal tissue), but also by comprehensive state laws on healthcare facilities generally and on reporting spontaneous fetal death and induced termination.
The complaint, filed Tuesday in the Court of Chancery, seeks a declaration that the ordinance is invalid and a preliminary and permanent injunction prohibiting the lifting of the city’s temporary stay of the enforcement of the ordinance, or prohibiting the ordinance’s effectiveness and enforcement.
On Monday, Seaford Mayor David Genshaw confirmed to WBOC that an anonymous donor is indeed willing to cover any legal costs if the city faces litigation.
"It was important for us, number one, to protect the city against any huge legal cost but also that someone local also believes that much in this and wanted to support us in this effort," Genshaw said. "That gives you a lot of encouragement."
Click here to read the lawsuit in its entirety.