DOVER, Del.- The City of Seaford is responding to a lawsuit filed by Delaware's attorney general challenging the city's passage of an ordinance mandating burial or cremation of fetal remains.
The Seaford City Council passed the ordinance last month regarding disposal of fetal remains in a dignified manner. The move came after Planned Parenthood opened a facility in Seaford in September, its first clinic in southern Delaware since its location in Rehoboth Beach closed in 2011.
The city said in a statement Wednesday morning that the ordinance "has never been about abortion." However, Delaware Attorney General Kathleen Jennings, a Democrat, insists it is and on Tuesday asked a Chancery Court judge to declare the ordinance invalid under state law and to issue a permanent injunction prohibiting it from being enforced.
The ordinance makes clear that women have the right under state and federal law to get an abortion, while also noting that courts have held that the disposal of fetal remains can be regulated. The ordinance also states that Delaware gives municipalities broad “home rule” powers.
Jennings said she warned city officials before Tuesday’s court filing that the “anti-choice” ordinance is preempted by state laws regarding disposal of human remains and medical waste, as well as state regulatory powers over health care facilities.
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.
Jennings also argues that the ordinance would pose a hardship on women by forcing them to pay for burial or cremation, even though a woman could opt not to select either option. In that instance, the abortion facility would be left to decide, at its expense, how and where to dispose of the remains.
“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,” Jennings said in a statement. “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.”
The statement included supporting comments from officials with Planned Parenthood, the American Civil Liberties Union and the Delaware chapter of the National Organization for Women.
Seaford City Solicitor Daniel Griffith said in the city's statement, "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."
The city council reviewed a draft of the ordinance in September but delayed a scheduled Oct. 12 vote after the attorney general and the ACLU of Delaware raised concerns about its constitutionality. On Dec. 14, despite threats of litigation, the council voted 3-2 to approve the ordinance.
The council voted on Dec. 30 to stay enforcement of the ordinance, but not its Jan. 22 effective date. The stay of enforcement was purportedly to see whether the General Assembly might enact legislation that could resolve the issue, but the council could vote to lift it at any time.
"We anticipate that the lawsuit will be dismissed as moot (because the
ordinance has been stayed) so that the General Assembly can address this issue," Griffith said. "It is disappointing that the AG is using our overcrowded court system and taxpayer money to pit governments against each other.”