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Chancery Court strikes down Seaford's fetal remains ordinance


Seaford loses the court battle over its attempt to regulate how fetal remains are handled.

Seaford City Council passed an ordinance last December requiring burial or cremation of fetal remains after an abortion, just after Planned Parenthood opened a clinic in the city.

And although council members later voted to halt enforcement to see if state lawmakers could settle the issue, Delaware Attorney General Kathy Jennings sued the City of Seaford in January, arguing the ordinance is invalid because state law already addresses the issue and such measures are preempted by the state under the Home Rule Act.

In his ruling issued Wednesday, Chancery Court Vice Chancellor Travis Laster agreed with the state, declaring the ordinance preempted and invalid. He ruled state law clearly prohibits burial or cremation of fetal remains, requiring they be incinerated .

"Sometimes, determining whether a conflict exists will present a 'difficult question,'” Laster wrote. "This is not one of those times."

Laster also rejected Seaford’s arguments for allowing ordinance to stand, including that state law does not expressly say fetal remains cannot be cremated.

"It is true that no statute says that in so many words. But the statutory scheme as a whole rules it out," Laster wrote. "Aborted Remains and Pre-Threshold Remains cannot qualify as a dead body for purposes of Delaware’s statutory regime, nor can they support the issuance of an official record of death, so they cannot be buried or cremated."

Laster also ruled Seaford is on the hook to pay the state’s legal costs for arguing the case.

Seaford mayor David Genshaw previously indicated there were outside resources to mount a legal defense of the ordinance, but did not disclose who the donors were.

Jennings hailed the ruling as a significant victory in the wake of the U.S. Supreme Court overturning Roe v. Wade last week.

“The U.S. Supreme Court has unleashed a wave of extremist, draconian laws across our country. That wave stops here,” said Jennings in a statement. “This ruling firmly rejects a clearly illegal and harmful attempt to nullify State law and to use dark money to return us to the Dark Ages. It protects residents and visitors of Seaford from a cruel and frankly hateful policy. And it makes clear that Delaware remains a safe haven for choice and reproductive freedom exactly when those sanctuaries are needed most."

ACLU of Delaware executive director Mike Brickner agreed with Jennings, arguing the ruling sets a tone in Delaware.

"We see this as a strong message, not just on this single ordinance that Seaford was bringing forth, but also to Seaford or other cities or counties throughout the state of Delaware who might be considering something similar, whether it’s a ban on abortion or some other way of regulating abortion," said Brickner. " That is really something that is done at the state level and our state has protected that right and attempts to try to undermine that right will not be tolerated by Delaware courts."

The City of Seaford released a statement saying it is "disappointed" by the ruling, but will abide by it. It did not address the issue of paying for the costs associated with the case.

"The City of Seaford was seeking a dignified way to handle fetal remains and we were advised may be a legal pathway to do so," the statement read. "We did not believe that disposing of fetal remains in a dignified manner would be controversial; we attempted to work with the State to ensure that the Ordinance would be consistent with state law, without success; and we believed this issue should have, and could have, been resolved by legislation as opposed to litigation. Toward that end, the City stayed enforcement of the Ordinance, so the litigation could be avoided."

Tom Byrne has been a fixture covering news in Delaware for nearly three decades.
Quinn Kirkpatrick was born and raised in Wilmington, Delaware and a graduated of the University of Delaware. She joined Delaware Public Media in June 2021