By Glenn Rolfe

SEAFORD — Mayor David Genshaw’s ordinance that would require “dignified” disposal of fetal remains from abortions performed within city limits is at a crossroad.

“I don’t know where we stand,” he said Thursday.

The proposal, which was up for a second reading and possible vote at City Council’s Tuesday meeting, was tabled after City Solicitor Daniel Griffith shared emails he received earlier that day from the American Civil Liberties Union of Delaware, which challenged several aspects and indicated potential legal action, and the Delaware Attorney General’s Office.

In its email, ACLU contended that the ordinance creates an undue burden on access to abortion; Seaford does not have the right to contravene state law; and the ordinance violates state law regarding minors seeking an abortion.

The letter from the AG’s office, in part, stated: “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.”

The vote on Councilman James King’s motion to table was 5-0.

“Based on the letter from the Attorney General’s Office, I’m like, ‘Whoa, hold on a minute. That kind of answers my question. Let’s slow down,’” Councilman King said. “Let’s make an informed decision based on the feedback that the state of Delaware is providing us. Is it legal? Let’s look at the legality. Is it infringing on people’s choices? Is it a violation of the Constitution? They (state officials) are going to provide us feedback and direction.”

Mr. Griffith said he believes the tabling was based more on the AG’s correspondence than the ACLU’s.

“In terms of the tabling of it — and I don’t want to speak for the council members — but I think it had less to do with the ACLU objection because that legal objection I’m not sure had much weight to it. The arguments that were raised in the ACLU’s letter have already been addressed and rejected by the United States Supreme Court,” he said.

“The state of Delaware’s letter didn’t really raise any objection to the ordinance. But it was received just a few hours before the meeting, and it asked council to table a vote. So the vote (on the ordinance) was, in my view, and I think some of the council members have voiced this on the record, … indifference to the state’s request.”

Mayor Genshaw had a different opinion about why the decision to table was made.

“I think there was a tabling out of concern of litigation (as mentioned in the AG’s letter). I think that was a great concern. That’s obvious,” he said. “The challenge with litigation for a small town is … it’s not like you can say litigation is going to cost $5,500, and it will last for a month. There are all those kinds of unknowns when you go into litigation that can create a lot of fear and concern for your town.”

Mayor Genshaw said the city’s proposed ordinance is based on an Indiana law pertaining to aborted fetal remains, one that was upheld in 2019 by the Supreme Court.

Seaford’s ordinance would require that remains have disposal through burial or cremation.

“When you look at this ordinance and you look at Indiana and a lot of these states that implemented very similar ordinances, they have done it at a state level, not a city level,” said Councilman King. “That didn’t sit well. Why is the city of Seaford coming out with an ordinance that hasn’t been approved through the state? I didn’t feel right. It didn’t make sense to me.”

Mr. Griffith said he has been in contact with the AG’s Office since receiving its email.

“I have had a couple communications with the state where I am trying, I have offered to address any concerns the state might have. I outlined for the state why I think, certainly from a legal position, this can withstand challenge. They have promised to get back to me with a more fulsome position on the ordinance. We just haven’t received that,” he said.

“Again, I can’t really speak for the council, all I can do is tell them what I think legally about the ordinance and it is up to them to decide whether it is a good idea or not. If I had to guess, the ultimate fate of the ordinance will be guided greatly by what the state has to say when it has had the chance to weigh in on it.”

“What we can say at this time is that we are looking into it and plan on engaging the city soon," said Department of Justice public information officer Carolne De Jose.

Council comments

“I think it’s prudent that we pause to hear out what the Department of Justice has to say,” said Councilman Dan Henderson, noting that, judging by attendance and emails on both sides, “it’s a pretty emotional issue.”

He added that the attorney general’s letter did not state a position.

“My impression of the letter was that they wanted to know what the city bases its reasoning (on). I’d really like to hear what the Department of Justice has to say. I am much less concerned what the ACLU has to say about it because the language of their letter was more saber rattling, I think, because some of these issues that they were talking (were) settled by the Supreme Court,” Councilman Henderson said.

“I don’t really feel like it’s my place to tip my hand on how I would vote because I want to hear both sides. I want to make sure every fact is brought to light. I know there is a lot of opinions out there. I want to know what the facts are as far as the state of Delaware goes. We all know that the Indiana state law prevailed.”

Councilman Matt MacCoy reiterated that the vote to table was 5-0.

“The main primary reason for that is because of the letters, specifically from the attorney general. We took that as that this is now an additional step in our due process,” said the councilman, who estimated that the city and council members have received 1,300 to 1,400 emails on the topic in last four or five days.

“I think (the tabling) was disappointing to a lot of people there, who came to support a specific side of the topic. My opinion on the matter is I’d rather take our time in order to get it right than to make a rush decision and do it incorrectly without all the facts.”

He added, “I want our council to do their due diligence and make the proper and right decision. That’s how I feel about every issue.”

Councilman Jose Santos doesn’t believe “that local city government should be taking on these issues. These are issues that are more of a federal and state level. When this ordinance came to the table and I read through it, there was just red flags that were popping up at me. I swear an oath, and just reading through these and thinking of the consequences that our constituents would have, I thought that this ordinance should not be passed,” he said.

Additionally, he said this proposed ordinance seems to be written from a Christian opinion and that the council represents “all constituents within the city limits.”

“I am a Catholic, but I have to set my biases aside when I am (representing council), knowing that not everybody in the city limits are Christians or Catholics,” Councilman Santos said. “By passing this ordinance, we are saying that life begins at conception. In my religion, that’s true. This is true in science in many ways, as well. For many different religions, this is not the case. I don’t think that it is right for us to pass ordinances basically drawing the line, saying this is the right thing. I have received hundreds of emails and the yeses have had a religious motive.”

Seaford council’s all-male composition also is a concern, he added.

“One issue that came up a lot when people reached out to me was that we are a council of all men up there. This is an issue that women are going to be affected by. We cannot represent our female constituents as females because we are all men,” he said. “I didn’t think that this decision should be made by this current mayor and council with there not being a female representative there.”

Councilman Orlando Holland could not be reached for comment.

‘Not a restriction on abortion’

“The frustrating part of the debate on the issue is trying to get third parties to understand that this is not a restriction on abortion,” said Mr. Griffith. “I have seen too many comments from either public interest groups or interested parties claiming that the Seaford ordinance is trying to limit abortion. Even the Supreme Court has said this is not a limitation on abortions. I am surprised by how controversial it has been.

“The choice is between disposing of fetal remains as medical wastes, which is what happens now, or requiring that it be disposed of by cremation or burial — a more dignified way.”

Mayor Genshaw said he thinks the council members are on the same page on the issue.

“I think the vast majority of our City Council agree that disposing of a baby in a medical waste box is unacceptable, and they do not support it, whether on Christian principles — which seem to be a hot topic right now, that you’re a Christian and that’s got to be bad — (or) on commonsense principles. No one agrees with that … whether you are a man or a woman.

“The council had received overwhelming public support to offer encouragement to what was being proposed to do,” he continued. “Right now, we are in sort of a strange place. I don’t know where this is going to go.”