DOVER, Del.- A fetal tissue ordinance enacted by Seaford City Council late last year has been overturned following a legal challenge by Attorney General Kathy Jennings and the Delaware Department of Justice.
The ordinance, enacted on Dec. 14 with an original effective date of Jan. 22, would have required anyone who had 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, despite a preemption by state law.
In a ruling released Wednesday morning, June 29, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ruled that the City of Seaford, as a junior sovereign, cannot enact a law that conflicts directly with law established by the state as the senior sovereign.
“The U.S. Supreme Court has unleashed a wave of extremist, draconian laws across our country. That wave stops here,” Jennings said in a statement. “This ruling firmly rejects a clearly illegal and harmful attempt to nullify state law and to use dark money to return us to the Dark Ages. It protects residents and visitors of Seaford from a cruel and frankly hateful policy. And it makes clear that Delaware remains a safe haven for choice and reproductive freedom exactly when those sanctuaries are needed most. I am grateful to the court for its wisdom and to our team for their quick response and tireless work on this case.”
Jennings filed suit on Jan. 11 after twice warning the Seaford City Council that state law preempted the ordinance. The council passed the ordinance despite those warnings, with a promise that an anonymous outside donor would fund the defense against the state’s incoming lawsuit. The court’s ruling awards costs to the state.
Since the DOJ’s arguments were premised on state law, the state’s case, and the Court of Chancery’s ruling, are unaffected by the U.S. Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization, according to Jennings.
Following the Chancery Court ruling, the City of Seaford issued the following statement:
"The City of Seaford was seeking a dignified way to handle fetal remains and we were advised may be a legal pathway to do so. We did not believe that disposing of fetal remains in a dignified manner would be controversial; we attempted to work with the state to ensure that the ordinance would be consistent with state law, without success; and we believed this issue should have, and could have, been resolved by legislation as opposed to litigation. Toward that end, the city stayed enforcement of the ordinance, so the litigation could be avoided.
"While we are disappointed in the court’s opinion, we will abide by its ruling"