Seaford continues to defend fetal-remains ordinance

After state files lawsuit, city cites Supreme Court actions

By Glenn Rolfe
Posted 1/12/22

SEAFORD — Hit with litigation Tuesday by Delaware Attorney General Kathy Jennings, the city is standing behind its controversial ordinance requiring “dignified” disposal by burial or cremation of fetal remains from abortions performed within city limits.

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Seaford continues to defend fetal-remains ordinance

After state files lawsuit, city cites Supreme Court actions

Posted

SEAFORD — Hit with litigation Tuesday by Delaware Attorney General Kathy Jennings, the city is standing behind its controversial ordinance requiring “dignified” disposal by burial or cremation of fetal remains from abortions performed within city limits.

“There are at least 13 states that require fetal remains to be cremated or buried; and the U.S. Supreme Court has upheld the constitutionality of these laws, saying that the government has a legitimate interest in the disposal of fetal remains,” Seaford solicitor Daniel Griffith stated in a press release issued by the city Wednesday.

Enforcement of the ordinance, approved Dec. 14, 2021, by City Council’s 3-2 vote, was then stayed by council Dec. 30, pending action by Delaware’s General Assembly.

In filing the legal action, Ms. Jennings said, “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 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.”

In its release, the city said the ordinance uses the same language as laws cited in cases upheld by the Supreme Court.

The city also said it has always known it cannot enact any ordinance that is contrary to state law and has repeatedly invited the state to participate in the process, with no success. It added that officials have done everything possible to avoid litigation.

“We anticipate that the lawsuit will be dismissed as moot (because the ordinance has been stayed) so that the General Assembly can address this issue,” Mr. Griffith said. “It is disappointing that the AG is using our overcrowded courts. I think that the city has done everything in its power to work with the state on this matter.”

In addition to the state, Seaford’s ordinance drew constitutionality concern and opposition from the American Civil Liberties Union of Delaware, Delaware NOW (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.

Filed in the Court of Chancery, 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.

An accompanying motion for expedited proceedings requests that the court schedule a hearing for preliminary injunction within 90 days.

Prior to the Dec. 14 vote, Seaford Mayor David Genshaw announced that someone had anonymously offered to financially support legal costs should the city be sued over the ordinance.

“Everybody was accusing us of wasting time and taxpayers’ money,” Mayor Genshaw said. “Well, this seems like a waste of time and waste of taxpayers’ money.”

Councilmen Dan Henderson, Matt MacCoy and Orlando Holland supported adoption of the ordinance, while Councilmen James King and Jose Santos opposed.

Councilman King, outspoken against the ordinance from the start, is concerned about a statement on the last page of the AG’s 22-page legal document, which seeks “an order awarding the state its costs in this action” and “an order awarding such other and further relief as the court may deem just, proper and equitable.”

“(Ms. Jennings) references in the document (that) they are asking to be reimbursed for all legal litigation expenses. Once again, that concerns (me), when you start talking about what the amount looks like. It could be an enormous amount,” he said. “I don’t believe that this anonymous donor is willing to step up and support that kind of dollar amount. So that concerns me.”

Councilman King said he plans to press the mayor for the identity of the anonymous donor and “how much money that (he or she is) committed to donating. That would make me feel better and, of course, a lot of people within our community, as well, as far as taxpayers.”
He added, “We’re not going to win this battle. We’re just throwing away a lot of money. The ordinance is going to be struck down.”

Mayor Genshaw, who spearheaded the ordinance’s adoption, called the legal action very disappointing.

“I think that the city has done everything in its power to work with the state on this matter,” Mayor Genshaw said Tuesday. “We tabled. We’ve stayed it. We’ve done what they have 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.”