Delaware attorney general announces suit against Seaford's fetal-remains ordinance

By Glenn Rolfe
Posted 1/11/22

SEAFORD — Threats became litigation Tuesday, as Delaware Attorney General Kathy Jennings filed suit against the city over its fetal-remains disposal ordinance, which she labeled “anti-choice” and contrary to state law.

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Delaware attorney general announces suit against Seaford's fetal-remains ordinance


SEAFORD — Threats became litigation Tuesday, as Delaware Attorney General Kathy Jennings filed suit against the city over its fetal-remains disposal ordinance, which she labeled “anti-choice” and contrary to state law.

“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,” said Ms. Jennings in a statement. “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.”

The ordinance was approved by council Dec. 14, 2021, in a 3-2 vote. Its enforcement was paused by a stay via a 4-0 council vote Dec. 30. The stay was to allow Delaware’s General Assembly to address the matter.

“I am disappointed. I think that the city has done everything in its power to work with the state on this matter,” said Seaford Mayor David Genshaw.

Prior to council’s Dec. 14 vote, Mayor Genshaw stated that someone had anonymously stepped forward and offered to financially support legal costs should the city be sued over the ordinance.

According to Ms. Jennings, the ruling had been scheduled to become effective Jan. 22 and would force 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, despite the hardship on patients and clear preemption by state law.

The American Civil Liberties Union of Delaware has also threatened litigation against the city and its ordinance.

That group’s executive director, Mike Brickner, and Delaware NOW (National Organization for Women) president Melissa Froemming issued a joint statement Tuesday, applauding the attorney general’s legal action against Seaford to permanently block the city’s fetal-remains ordinance.

“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,” the statement read. “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.”

Planned Parenthood of Delaware offered its support to the legal challenge Tuesday.

“We are grateful Attorney General Kathy Jennings recognizes the issues with Seaford’s ordinance and would like to thank the entire Department of Justice for the hard work the agency has put into this,” said Ruth Lytle-Barnaby, its president/CEO.

“City Council’s decision to stay the ordinance makes plain that this has always been politically and ideologically driven. 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. Individuals who choose to undergo abortions need support and understanding, not unlawful statutes that shame them. 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 AG’s press release, on Aug. 24, 2021, 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 on the Delmarva Peninsula south of Dover. It added that protests were already taking place regularly at the Seaford site when, on Sept. 28, City Council reviewed a draft of the remains ordinance. City Council scheduled a vote on the ordinance Oct. 12 but delayed it after the attorney general and ACLU raised concerns about its constitutionality.

“We tabled. We’ve stayed it,” said Mayor Genshaw. “We’ve done what (the state has) asked. We’ve asked for them to come to the table and talk to us. We’ve pointed out where we are with the law. We’ve tried to clarify it’s not about abortion; it is about fetal remains. It is truly about what do you do with fetal remains? Do you believe they should be handled in a dignified manner, or do you believe they should be thrown away as waste? That’s all this is about.”

The complaint, filed 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 its enforcement. An accompanying motion for expedited proceedings requests that the court schedule a hearing on the state’s motion within the next 90 days.