SEAFORD – Facing the threat of litigation on several fronts, Seaford City Council will meet in special session Thursday to consider a proposal to “stay enforcement” of the city’s controversial fetal remains disposal ordinance narrowly approved earlier this month.
With city solicitor Daniel Griffith’s assurance, the proposal, spurred by Seaford Mayor David Genshaw, would pass constitutional muster, Council, by a 3-2 margin Dec. 14, approved an ordinance addition to city code that will require dignified disposal of fetal remains from abortions performed within city limits.
The ordinance, which drew immediate litigation threats from the Delaware Attorney General’s Office and the American Civil Liberties Union, would go into effect after a required 30-day advertising period is met. Mayor Genshaw said it’s his understanding the advertising period was scheduled to begin Dec. 23.
Also on the Thursday agenda is discussion of funding of potential litigation. That line item was requested by councilman James King in response to Mayor Genshaw’s announcement prior to council’s Dec. 14 vote that someone has offered to financially support legal costs should the city be sued.
Mayor Genshaw said last week it is that person’s desire to remain anonymous. Mr. King disagrees, saying this information should be made public.
“The thing that concerns me is they are having these discussions around all this information and there has been a lot of people inquiring who this donor is,” said Mr. King. “I have an obligation to the voters, the constituents. Transparency is important.”
Mayor Genshaw said his understanding is the city had not yet officially been sued, as of Thursday, and the proposed temporary stay of enforcement serves as a buffer against litigation.
“If the city of Seaford were to do a stay, that kind of cuts their legs out from under them and they cannot do anything. You cannot sue anything that is not happening. That would pause it,” Mayor Genshaw said.
The morning after council approved the ordinance, Delaware Attorney General Kathy Jennings issued a statement, saying the city council “narrowly passed an anti-choice ordinance despite written notice that they were in flagrant violation of state law, constitutional precedent, and established fundamental rights.”
Ms. Jennings said council’s action left her “with no choice but to do exactly what the councilmen were warned of: sue one of our own cities on behalf of the people of our state. And in the end, this ordinance’s inevitably short life span will accomplish nothing other than a colossal waste of taxpayer money.”
Immediately after council’s vote, ACLU of Delaware Director Mike Brickner said the ordinance violates state law and the Constitution.
“And we believe it will be subject to legal challenge. We were very serious when we first sent a message to the city council back in October that we believe this is an ordinance that will be subject to legal challenge. I think it will be in the near future,” Mr. Brickner said.
Planned Parenthood Delaware and the League of Women Voters Delaware have also condemned Seaford’s ordinance, which drew majority council support from Matt MacCoy, Orlando Holland and Dan Henderson. Councilmen King and Jose Santos opposed.
Mayor Genshaw said the ordinance is geared to provide dignified disposal of fetal remains, by burial or cremation, as opposed to fetal remains being periodically picked up by medical waste trucks.
Planned Parenthood noted in its statement it’s “no coincidence” this ordinance was passed “just weeks after PPDE opened its new Seaford clinic.”
“It is part of a broader effort by anti-abortion politicians to end abortion access nationwide,” said Ruth Lytle-Barnaby, president and CEO of Planned Parenthood Advocacy Fund of Delaware.
The League of Women Voters of Delaware, in a Dec. 20 release from state board president Gwendolyn Miller, expressed outrage over the “recently adopted ordinance by the Seaford City Council to require burial or cremation of abortion and miscarriage remains. The League believes that, in a pluralistic society, public policy mandates the constitutional right of privacy for the individual to make reproductive choices, and we oppose any threat to this basic constitutional right.”
“The requirements outlined in this ordinance do pose a threat to those who seek to carry out their constitutional right to privacy. The intent of the ordinance is clearly harassment — to add to the stress, and expense — that women face when they make the choice to have an abortion,” the LWV stated.
“Its goal is to put pressure on women to forgo this constitutional right. Protecting a woman’s right to make her own decision isn’t much of a protection if the government can enact financial barriers that place an unnecessary burden on the woman’s ability to make such a decision. For an individual municipality to do this is even more troubling in that it serves no public health function in which the state (let alone the municipality) might have a legitimate interest.”
In closing, LWV says it stands with “others who have spoken out against this ordinance and call upon the attorney general to follow through with the plan to issue an injunction against the ordinance and file a lawsuit to declare it unconstitutional.”
Violation of this ordinance shall be enforced either by civil infraction or notice and order, with associated fines. There is no plan for policing or monitoring, Mayor Genshaw said, adding people are expected to abide by the law. The Planned Parenthood facility in Seaford is in the Herring Run Medical Plaza.
Contacted Thursday, Planned Parenthood had no comment on council’s upcoming special meeting, reiterating its prior statement that the ordinance “is unnecessary, it contradicts existing laws, and it continues the stigma around abortion.”
In a presentation before council’s Dec. 14 vote, Mr. Griffith said there are 13 states that have ordinances for dignified disposal of fetal remains and noted the U.S. Supreme Court “has addressed and upheld the constitutionality of the dignified remains laws.”
Mr. Griffith emphasized “that we know that a woman has a right to an abortion in the state of Delaware. This ordinance is not intended to impair that.”
“If you listen to what our attorney has said all along, and that is the state has no legal direction on what happens with fetal remains, that is why the city of Seaford could do what it did,” said Mayor Genshaw.
“We would love the state to tell us what the ruling is. They (state) certainly could legislate. And we fully expect they will on how to handle fetal remains appropriately. We would love for them to adopt what we have proposed. If there was some law out there, something in the Delaware Constitution that said we couldn’t have done this, they would have presented that already. But they have not.”
Mayor Genshaw likened this scenario with city council’s passage in December 2017 of a right-to-work ordinance that would limit the influence of labor unions. In June 2018, Democratic lawmakers in Delaware’s General Assembly passed legislation that invalidated the local ordinance approved by Seaford.
“Seaford passed right to work. It was legal,” said Mayor Genshaw. “Then the state passed a bill that said no city is allowed to do what Seaford did.”
Council’s Dec. 30 agenda includes executive session pertaining to litigation. In regular session, new business items include the stay of enforcement, and funding of potential litigation, with possible council action.
Mayor Genshaw said city solicitor Mr. Griffith is going “to walk the city council through where we are, currently with litigation from the ACLU and the attorney general, both of whom have threatened to sue us, publicly.”
“My assumption is … we’re going to either to stay the course and let it go the way it goes or were going to take some guidance from Mr. Griffith,” said Mayor Genshaw.
“Of course, we knew there would be threats of litigation. Hence, is why it was important for us to have support, financial support. I didn’t think it was appropriate for the city to fund all this. We don’t have a budget to take on legal fees like this,” said Mayor Genshaw. “Again, I shared at council that we’ve had someone step up and say that they would cover the city.”
Mayor Genshaw said “this individual has the means but was never going to pay for this directly.” The mayor this could include Delaware Strong Families, or something similar which then “does fund these kinds of things and has the ability to pay for these kinds of services, either directly or not directly.”
Mayor Genshaw said he has offered to share with Mr. King “in private, who it is.”
“This topic/information in my opinion has nothing to do with the legal litigation the city is facing,” Mr. King said.
“I received a ton of emails from city residents/constituents around this topic. In my opinion they have a right to know, not, ‘I will tell you as long as you promise not to tell.’ I am not OK with that. In all fairness we need to have an open discussion around this where people in the community can hear this, witness this, not behind executive session and then everything is protected when we leave the room.”
Mr. King says the city needs something in writing.
“There is nothing concrete. What’s the dollar amount? You’ve got multiple pending lawsuits from the ACLU, the state of Delaware,” said Mr. King. “My point being, we’ve got this magical, mystical donor, right. So, what does that look like dollarwise? We’re talking about a substantial amount of money.”
According to Mayor Genshaw, the city solicitor is going to address the issue.
“If this were to go to litigation, which it has not yet, this would all be publicly disclosed,” Mayor Genshaw said. “So, and until that time we don’t have to disclose anything. We’re not.”
“I feel this topic needs further discussion. Example — can the mayor accept this money without council approval and is accepting this money even legal?” said Mr. King.