By Glenn Rolfe

SEAFORD — Litigation brought on by the state challenging the city’s fetal-remains ordinance is scheduled to be heard Thursday in the Court of Chancery in Wilmington.

The proceeding is on the docket for 9:15 a.m. before Vice Chancellor J. Travis Laster. It will follow City Council’s action this week to amend some language in the ordinance.

In early January, Delaware Attorney General Kathy Jennings made good on her pledge to challenge the controversial ordinance, which requires “dignified” disposal by burial or cremation of fetal remains from miscarriages or abortions performed in Seaford.

Upon filing the legal action, Ms. Jennings stated, “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. 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 50 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.”

By a majority vote, City Council approved the first reading of the ordinance Sept. 28, 2021. Councilmen Matt MacCoy, Orlando Holland and Dan Henderson supported the proposal spurred by Mayor David Genshaw, while James King and Jose Santos opposed.

A second reading and adoption by a 3-2 vote was Dec. 14. At that time, Jan. 22, 2022, was listed as the date the ruling would take effect.

However, its enforcement was subsequently stayed by council Dec. 30, pending possible action by Delaware’s General Assembly, which has not acted so far. Enforcement remains stayed, now awaiting the state’s legal challenge.

“What this whole thing is about is they are going to argue that it prevents or is trying to distract or try to make it harder for people to get an abortion. I think our ordinance states six or seven times that we understand, and we agree that abortions are legal in the state of Delaware,” Mayor Genshaw said Wednesday.

“This strictly deals with what happens with those remains after the abortion or after the miscarriage. We believe they should not be handled as medical waste, but they should be handled in a dignified manner.”

The ordinance also drew opposition from the American Civil Liberties Union Delaware, Delaware’s chapter of the National Organization for Women, the League of Women Voters of Delaware, Women’s March Sussex-Delaware and Planned Parenthood of Delaware, which opened a location in the city’s Herring Run Medical Plaza last summer.

It is supported by the Delaware Family Policy Council.

The state’s lawsuit seeks a declaration that the ordinance is invalid and a preliminary and permanent injunction prohibiting the lifting of the temporary stay of its enforcement or prohibiting its effectiveness and enforcement.

“What the lawsuit is all about is, does state law already cover this?” said Mayor Genshaw, who does not plan to attend Thursday's hearing. “The state says it does. We say it does not, and we would like to have this provided.”

In preparing for this week’s court proceeding, City Council, following a presentation by Seaford’s solicitor, Daniel Griffith, approved several amendments to the ordinance to clean up language Tuesday.

“Like all pieces of litigation, we are encouraged to narrow the issues as much as we can and present only the dispute to the court that we can’t reach an agreement on,” Mr. Griffith said. “The litigation involves an alleged conflict between certain provisions of the ordinance and state law. So what we have tried to do is make an effort to eliminate, to the extent we can, minor discrepancies that we can agree on.”

For example, one amendment focused on rules regarding ambulatory surgical treatment centers.

“The previous provision had a limit of 24 hours (for a patient to remain in a medical center). This proposed amendment uses language from the state statute and provides for a stay (there) until the patient meets the criteria for discharge. That is the language from the state statute,” said Mr. Griffith.

Another amendment involved requirements for operators of crematories.

“The original provision provided multiple methods for the return of cremated fetal remains to the responsible person. Again, using the language from the Delaware administrative code, the amendment would provide just one way, which is to return the cremated fetal remains to the responsible party in a secured container,” said Mr. Griffith.

The third amendment deals with the required reporting of abortions.

“The prior provision had reporting within 10 days to the Office of Vital Statistics,” the solicitor said. “Again, utilizing language and provisions from state law, the new amendment has a time frame of 30 days and reporting to the Department of Health and Social Services.”

Regarding the language-change amendments, council’s vote was 3-1 to pass, with Councilmen MacCoy, Henderson and Holland supporting. Councilman Santos voted no, while Councilman King was not in attendance.

Contacted Wednesday, Delaware Department of Justice spokeswoman Caroline De Jose said the department has no comment at this time.