Seaford City Council tables ordinance about fetal remains

Further discussion expected after ACLU, AG input

By Glenn Rolfe
Posted 10/13/21

SEAFORD — Facing a legal threat, City Council unanimously tabled action Tuesday on a proposed ordinance that would establish a process for “dignified” disposal of fetal remains after abortions within city limits.

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Seaford City Council tables ordinance about fetal remains

Further discussion expected after ACLU, AG input


SEAFORD — Facing a legal threat, City Council unanimously tabled action Tuesday on a proposed ordinance that would establish a process for “dignified” disposal of fetal remains after abortions within city limits.

According to Seaford City Solicitor Daniel Griffith, several hours before the 7 p.m. meeting, he received emails from the American Civil Liberties Union, threatening legal action, and the Delaware Attorney General’s Office, questioning Seaford’s legal ground to impose the ordinance.

Mr. Griffith shared with council, city leaders and members of the public — including representatives of the Delaware Family Policy Council supporting the ordinance — a synopsis of the AG’s inquiry.

It read: “We would appreciate hearing from your client or you about the legal authority for the City of Seaford to legislate this. We also respectfully ask the council to table this ordinance until such time as we are able to assess whether this ordinance is consistent with federal and state law.”

Seaford Councilman James King then motioned to postpone the proposal.

“Based on the recommendations from the Attorney General’s Office in the state of Delaware and pending litigation, I would make a motion that we table this conversation until there is more information provided to us,” he said.

Councilman/Vice Mayor Dan Henderson said he voted yes to table “out of respect for the Department of Justice in the state of Delaware.”

Following an executive session to discuss the matter in more detail, the motion to table was approved.

Presented for a first reading Sept. 28 as an addition to “Chapter 8: Morals and Conduct” of the city’s municipal code, the proposal was up for a second reading — and possible vote — Tuesday evening.

It is crafted from an existing state law in Indiana, requiring abortion providers to bury or cremate fetal remains, said Mayor David Genshaw, who spearheaded the ordinance.

Through research, Mayor Genshaw said he found a bill that was passed by Indiana a few years back. The legislation made its way to the U.S. Supreme Court, which allowed Indiana to enforce a provision of the law that requires fetal remains to be disposed of by burial or cremation, rather than as medical waste.

ACLU objections

Seaford’s proposed ordinance also faces a litigation threat from ACLU, which contended in an email to the city from its executive director, Mike Brickner, that:

  • The ordinance creates an undue burden on access to abortion.

“What it does is it adds an extra administrative burden to both the clinic and then also the patient,” Mr. Brickner told the Delaware State News.

The clinic has to go through this whole process of putting together a form. They have to potentially arrange partnerships with crematoriums or funeral directors in the city or surrounding area. And raising the costs for either the patient or the clinic, ... the clinic might have to pass that back down to the patient ... or to other patients. Again, (that) raises the financial barriers to get an abortion and creates an undue burden,”

  • Seaford does not have the right to contravene state law.

“The state of Delaware, we have a legislature that has actually enshrined the Roe vs. Wade decision in state law. We have affirmed that abortion is legal and is a right here in the state,” Mr. Brickner said. “Seaford then adding in an additional regulation really undermines the state legislators’ role of being able to make that policy. They can’t then pass laws that conflict with the state’s laws of ensuring that anyone who wants to have access to an abortion has that access, with an ordinance that is going to make it more burdensome and difficult for a person to get an abortion and for a clinic to provide an abortion.

  • The ordinance violates state law regarding minors seeking an abortion.

“What we require here in Delaware, if you are a minor that wants to get an abortion, we require that minor to notify at least one of their parents. Now, we have a whole process for if the minor is unable to do so. We don’t require consent,” Mr. Brickner explained.

“The issue with Seaford’s ordinance is that it requires parental consent for minors who get an abortion. It requires consent for them to dispose of the fetal remains. It is sort of a backdoor to raise the bar, so that you then have to get consent.”

The ACLU email to council concluded, “As our organization is committed to defending the civil rights of all Delawareans, we will be forced to bring litigation, which likely will conclude with a judicial finding that the City of Seaford exceeded its authority in passing the proposed ordinance. Given that the unlawfulness of the proposed ordinance is so evident, and purports to govern a problem that does not even exist, please be advised that we will seek punitive damages and attorneys’ fees.”

Ordinance support

Seaford resident Tammy Cook, a member of the Delaware Family Policy Council, said Tuesday she strongly supports the proposed ordinance, adding that abortion remains do not deserve to be thrown away.

“We’re here letting the Seaford City Council know that … we want them to vote yes for the ordinance,” Ms. Cook said. “I am an animal lover. I love animals. Pets that have died, we didn’t throw them out in the trash can. We buried them discretely because they were members of our family. The same thing with human life. These remains, these pieces of babies, fetuses — that’s what other people call them — they need to be disposed of properly.”

Bertine Lucas of Seaford, Roberta Jean-Louis of Georgetown and Jordan Warfel of Greenwood all agreed.

“I believe that those babies, the remains are to be buried with dignity because they are human,” Ms. Lucas said. “No matter how we see them or what we call them, they are human, and they need to be buried with dignity. I believe that life is important.”

Ms. Jean-Louis said she feels passing the ordinance would help families.

“I feel as though … all human beings deserve dignity,” she said. “It would be nice to see families get closure when something so tragic just happened, even if the circumstances were not the best. It’s always a good thing to allow people to have closure. It brings importance to life. It shows how life is important.”

Mr. Warfel also emphasized that this is a dignity issue.

“We believe that it is important that we treat the bodies of our offspring with dignity and respect after the abortion,” he said. “This doesn’t speak to religion. It doesn’t speak to the right to an abortion. Nobody is going to lose the right to an abortion under this ordinance. I believe it is consistent with state law. State law protects the right to an abortion.

“But what it does do is it gives women options for how they want to treat their child after the abortion. They can choose a funeral. They can choose cremation. They can choose their own funeral director if they like. They can choose to have a ceremony. This really empowers women to make that choice instead of the abortion facility.”

However, Mr. Warfel added that he believes City Council did the right thing in its decision to table the matter.

“As far tabling it, it is what the City Council needed to do. It’s a technicality. It doesn’t mean that this ordinance is passing or failing,” he said. “It is disappointing that the attorney general didn’t bring this up until today and the ACLU didn’t bring this up until today. I wish they had brought this up a week ago, so we could get this done and over with. But we have to do what we have to do.”

Mr. Brickner was pleased with Tuesday’s motion to table.

“We are very happy that Seaford City Council decided to table it. We believe that was a very wise decision. What we asked them to do is we hope they will take our letter and the letter from the attorney general and any future conversations they have with either us or the attorney general into consideration,” he said.

Planned Parenthood

Earlier this week, Mayor Genshaw said there is no connection to the proposal and newly opened Planned Parenthood clinic, off Bridgeville Highway in Seaford.

But Planned Parenthood has stated its opposition to the ordinance.

“This ordinance conflicts with state law and the constitutional right to access abortion care. A similar requirement passed in Texas was struck down, with a federal district court noting the law imposed significant burdens on pregnancy-related medical care without providing clear benefits to patients,” said Ruth Lytle-Barnaby, president/CEO of Planned Parenthood Delaware, on Monday.

“The proposal will hurt people in Seaford and surrounding areas by subjecting them to medically unnecessary restrictions that are intended to shame and stigmatize those who choose to seek abortion.”