By Glenn Rolfe

SEAFORD — Enforcement of Seaford’s controversial ordinance pertaining to the disposal of fetal remains is on hold indefinitely, pending action by Delaware’s General Assembly.

City council at a special meeting Thursday evening voted 4-0 to stay enforcement of the ordinance originally approved by a 3-2 margin on Dec. 14. The ordinance would require “dignified” disposal of fetal remains — burial or cremation — from abortions performed within city limits. The passage of the ordinance drew strong opposition, and threats of litigation, earlier this month.

“The proposed motion would be to stay the enforcement of the ordinance indefinitely with the city observing the right to lift the stay upon proper notice,” stated city solicitor Daniel Griffith, addressing council following an executive session.

Councilman James King, who joined Orlando Holland, Jose Santos and Matt MacCoy in approving the stay, has opposed the ordinance from the beginning back in late September.

“This ordinance, in my opinion, is complete waste of time, energy and resources. We are having conversations around something, in my opinion, that is completely illegal. I feel that this ordinance is illegal and unconstitutional and is in violation of civil rights,” Mr. King said. “Once again, the state of Delaware currently has a law in place that handles fetal remains. If that law is going to change, it must happen at the appropriate levels of the General Assembly, once again not at a city level.”

“But taking the consideration of putting this ordinance on hold and letting the General Assembly make that decision of law, it’s going to save the residents of Seaford a tremendous amount of money in litigation,” Mr. King said. “With that being said, I am not in favor of this ordinance, but I am in favor of this — to allow more time for the General Assembly to make their decision.”

The ordinance, which drew immediate litigation threats from the Delaware Attorney General’s Office and the American Civil Liberties Union, was to go into effect after a required 30-day advertising period is met.

Delaware Attorney General Kathy Jennings, in a statement issued Friday, 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.”

“Seaford City Council made an attempt to restrict access to abortion in their city, and it didn’t work,” said ACLU Delaware Executive Director Mike Brickner. “The proposed ordinance was illegal, unconstitutional, and unnecessary — it was never about dignity for fetal remains; it was about removing dignity from people who have an abortion.”

The ordinance drew opposition from other organizations, including the League of Women Voters of Delaware and Planned Parenthood of Delaware, which has a location in the city in the Herring Run Medical Plaza.

“A stay of enforcement is good, but we hope to see this ordnance repealed. Leaving an unconstitutional, illegal, and unenforceable ordinance on the books is pointless,” said Mr. Brickner. “In the meantime, we stand with Planned Parenthood of Delaware, Delaware NOW, Southern Delaware Alliance for Racial Justice, Women’s March Sussex, our neighbors in Sussex County, and more — ready to take action if enforcement of this ordinance comes back to the table.”

Planned Parenthood Delaware spokesman Matt Bittle on Friday said that while Planned Parenthood is “glad this burdensome ordinance will not go into effect in the immediate future, City Council’s decision to stay the ordinance yesterday makes plain that this has always been a cynical political stunt based on ideological grounds. The sole aims of this ordinance are to shame patients and discourage them from accessing abortion and miscarriage care. Even without enforcement right now, the measure can be reinstated at any time, and so the dignity and well-being of pregnant Delawareans is undermined as long as it remains on the books.”

“We will continue to support Attorney General Kathy Jennings in pushing back against this ordinance and look forward to this issue being decided in court,” Mr. Bittle said.

Mayor David Genshaw, who spearheaded the ordinance that was crafted from Indiana law, believes the council took the right path in taking a pausing enforcement of the ordinance.

“Again, I think under the guidance of Mr. Griffith, we’re following his lead again to be good partners with our state. We certainly don’t want to be antagonistic to our state. We want to work with them. This stay allows them time to speak on this matter,” said Mayor Genshaw.

He said that when council started this process, Delaware law “was not clear on this matter, so we saw a legal pathway.” They found what Indiana had done prior, which was upheld by the Supreme Court, he said.

“We presented that. The state then said, ‘Don’t do this. We’d like to talk to you about it.’ So, we tabled I think in good faith,” he continued. “We reached out to the state to have those conversations. Those never happened. We waited practically 60 days to bring it back. The state made a threatening letter five hours before our meeting. So, we’re right back to the same spot again.”

“We should have had these conversations of what we are doing now at the very beginning. I think we’ve got to be reasonable. I don’t think the city was reasonable with timelines,” said Mr. King. “I feel the stay enforcement is just a stay tactic to deny the inevitable. I feel that this ordinance is a complete overreach of government, nothing more than grandstanding and posturing.”

Mr. MacCoy reminded council colleagues and the handful of residents in attendance “that we are not ruling on the ordinance itself but a pathway forward.” Mr. MacCoy added that this decision and other decisions should be made by representation, “and not in a courtroom.”

Mr. Holland and Mr. Santos agreed to the stay, to allow involvement from the state legislatively. Council member Dan Henderson, on vacation over the holidays, was absent.

“As an elected official, we must uphold our elected duties,” said Mr. King. “The separation of church and state implemented by the First Amendment to the Constitution is one of them. We cannot sponsor a religion, promote religious ideas or require individuals to practice a particular faith. At the beginning of this process … Seaford mimicked the state of Indiana. Of course, that was a state not a city. The Delaware Attorney General pointed out the state of Indiana did not have an existing statute that include fetal remains. Delaware does have a state statute regarding fetal remains.”

In his prepared statement during council’s vote, Mr. King said the Fourteenth Amendment to the U.S. Constitution provides a right to privacy “that protects a woman’s liberty to choose regardless of biblical views. I feel that the city of Seaford ordinance violates that right.”

Mayor Genshaw can only guess how the state will respond.

“I would like to think the state is going to react pretty quickly to this since we did what we did. This isn’t a difficult issue. I don’t see it as a difficult issue. I would like to think they would act quickly, but they probably won’t,” Mayor Genshaw said. “I would say that if come June (2022) if nothing has happened I think our council will get antsy and want to move forward. Six months seems fair. Again, this stay can be lifted at any time that council chooses.”

The mayor said no one really seems to be arguing on whether fetal remains should be handled in a “dignified” manner.

“No one seems to be challenging whether that is right or wrong. That is what we are saying, that they should be handled in a dignified manner,” said Mayor Genshaw. “This is really a principled issue. It’s what you feel about how human remains should be treated. We’re better than that. We should not be discarding human remains as waste.”

After approving the stay, council did not act on a second agenda item pertaining to funding of potential litigation. Prior to council’s Dec. 14 vote, Mayor Genshaw stated that someone has stepped forward and offered to financially support legal costs should the city be sued over the ordinance. The mayor said this person wished to remain anonymous.

Mr. King had questioned the legality of that and pressed to have the identity made public.

Solicitor Griffith, noting that the ordinance has been stayed, advised council that he believes that the potential litigation issue “is moot.”