By Glenn Rolfe

SEAFORD — Mayor David Genshaw is honoring the request for anonymity of a donor who has pledged support to help cover any legal costs should the city face litigation over its controversial fetal-remains ordinance, currently paused via an enforcement stay.

“That person said, ‘I’d like my name kept out. I don’t want to be the center of this. I am just offering to help,’” the mayor said.

While he is committed to honor that trust, he said the donor’s identity could be determined, in a roundabout way.

“The reality is, is that this person is going to funnel money to another group who is then going to defend us, who will then offer financial assistance,” added Mayor Genshaw, who pushed for the ordinance, which would prevent aborted remains from being discarded as “medical waste.”

He identified the Delaware Family Policy Council or Delaware Strong Families as those groups, adding that the entities would have to list their donors on their tax returns.

“So this person will be exposed, and everybody will know who it is, I guess. If they try to figure it out, it wouldn’t be hard. So ultimately that person’s name could be identified.”

Councilman James King, who has vehemently opposed the “dignified-disposal” ordinance that has drawn legal threats from the state of Delaware, the American Civil Liberties Union of Delaware and other groups, has pressed for public disclosure of the anonymous donor’s identity.

Councilman King said he has asked the state Attorney General’s Office for its opinion.
“My concern was: Is this legal? Is it acceptable for someone to step up and pick up legal fees?” he said.

According to Mayor Genshaw, he first offered to share the identity with members of council in private, on the pledge that they did not subsequently reveal the name. Responses to that suggestion were mixed, the mayor said.

Councilman King said he was against that offer.

“Originally, he said, ‘Look, I’ll tell you this information in closed session.’ I said, ‘Look, don’t tell me. I don’t want to know that,’” he said. “David has changed his stance.”

Enforcement of the ordinance, requiring burial or cremation of remains from abortions performed within city limits, was paused by council through a temporary stay that was approved 4-0 Dec. 30, 2021.

The stay, which came 16 days after council’s 3-2 approval of the ordinance, is to allow time for pending involvement by Delaware’s General Assembly in consideration of existing state law.

Daniel Griffith, Seaford’s city solicitor, in providing council with the motion for the stay, stated that the city observes the “right to lift the stay upon proper notice.”

Delaware Attorney General Kathy Jennings has pledged to bring legal action against the city for passage of the ordinance, saying it is “in flagrant violation of State law, constitutional precedent, and established fundamental rights.”

ACLU also threatened legal action against the ordinance. Additionally, it drew opposition from the League of Women Voters and Planned Parenthood Delaware, which has a location in the Herring Run Medical Plaza within city limits.

Mike Brickner, ACLU Delaware’s executive director, said that, when his group files any lawsuit, it does so “on behalf of persons or organizations that have been harmed by government actions. In this case, Delaware NOW (National Organization for Women) would serve as a client for the ACLU of Delaware’s lawsuit.”

“Fortunately, the city of Seaford wisely voted to stay the enforcement of this illegal and unconstitutional ordinance. Critically, this means that people who seek abortion care or who experience a miscarriage do not have to abide by the rules and regulations of the ordinance,” said Mr. Brickner. “However, a stay is not necessarily permanent — Seaford City Council could decide to begin enforcing the ordinance at any time in the future. We strongly encourage Seaford City Council to repeal this law outright, as it is a direct violation of state law and undermines people’s right to obtain an abortion.”

Ms. Jennings, in a statement issued the morning after council approved the stay, said, “Declaring a unilateral timeout doesn’t change the law. Seaford’s attempted restriction of reproductive health is still plainly illegal, and our responsibility to uphold the law is unchanged.”

Mayor Genshaw said that, as of Tuesday, he was not aware of any legal action brought against the city.

Councilman King labeled the ordinance a “complete waste of time, energy and resources. I feel that this ordinance is illegal and unconstitutional and is in violation of civil rights. It is illegal and unethical.”

Mr. Griffith, in prepping council for its Dec. 14 vote, said it would not violate any existing state law.

Councilmen King and Jose Santos voted against the ordinance. Councilmen Matt MacCoy, Orlando Holland and Dan Henderson supported it. During that meeting, seating in council chambers was filled with supporters, while those opposed stood in the crammed City Hall lobby.

In retrospect, the mayor said he believes he should have remained mum regarding the anonymous donor.

“I probably should have never said anything,” he said. “But my thought was, my thinking was, if I could share with council that someone, a person, that all mostly either know personally or know of, was willing to support financially, that that would give credibility.”

Councilman King, fearful the city could wind up with an “astronomical” bill for legal costs, said he thinks the statement was nothing but a strategic ploy by the mayor.

“Dave made this comment before this ordinance was ever passed. He used this, in my opinion, as a tool to get council members, to sway them into moving forward with a potential vote, saying we’ve got an anonymous donor,” he said. “I’m not a lawyer. I think it was, in my opinion, unethical for Dave to even mention this to kind of sway council.

“It is a personal matter, and they are using resources of the people of the city to fund that,” Councilman King added.

Mayor Genshaw said there have been offers of support from within the city and beyond, adding that it has received a $500 check from a Felton resident. That check was returned with thanks for “their encouragement,” he said.

“We’ve done our duty,” he said. “We’ll let God do the rest.”