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Seaford passes fetal remains measure, now faces legal challenge

Roman Battaglia
Delaware Public Media

The city of Seaford passes an ordinance imposing requirements on the disposal of fetal remains.

The city council tabled the ordinance in October after the state Attorney General’s office asked to first look at its legality under state and federal law.

Council members approved the ordinance 3-2 Tuesday night in a packed city council chamber.

That vote came despite a Delaware Department of Justice opinion that the ordinance is likely unconstitutional. In a letter sent to council, DOJ cited numerous cases and state laws that preempt any kind of city ordinance on abortion.

The ACLU of Delaware’s executive director Mike Brickner says he’s confident the state protections will sink the measure

“In those states where there are strong state protections like here in Delaware, those efforts are going to fall flat in courts,” says Brickner, “And again, that’s why we and several of our activist friends and our sister organizations are here tonight to say — we’re holding the line here in Delaware and we’re going to make sure that anyone who needs access to an abortion can get one.”

The ordinance requires the cremation or internment of fetal remains from abortions or miscarriages in the city. The cost of disposal is also passed onto either the patient or the provider, depending on who chooses the disposal procedure.

Brickner says this kind of law is designed to make it more difficult for women to seek an abortion, especially those with low incomes.

In a statement Wednesday, Planned Parenthood of Delaware president Ruth Lytle-Barnaby says, "City officials who support this ordinance have sent a powerful message: They do not value a person’s bodily autonomy or a parent’s right to make their own choices after a pregnancy loss. The people of Seaford need local representatives to focus on policies that help their town, not political stunts that shame their neighbors and put necessary health care out of reach."

Stacy Spicer came to the city council meeting with her mother and daughter, all residents of Seaford.

Spicer says the timing of this ordinance can’t be a coincidence, with Planned Parenthood of Delaware opening a new clinic in the city recently, offering abortions alongside many other reproductive health services.

“If you know anything about Seaford we definitely need a Planned Parenthood,” says Spicer, “Just our demographic, we have a lot of lower socioeconomic individuals here and I think it’s a wonderful thing.”

Spicer says an ordinance like this is going to hinder those low income folks from being able to access abortion services.

Supporters of the measure would disagree with that statement, saying it won’t prevent access to abortion, something protected under Delaware law.

Nicole Theis is the president of the Delaware Family Policy Council, a religious advocacy group opposed to abortion.

“This ordinance is very narrow in identifying appropriate disposal of human remains,” Theis says.

The definition of human remains was also a topic of debate at the council meeting. Theis and others believe any remains as a result of an abortion, no matter the stage of pregnancy are considered human remains. Part of the goal of the ordinance is meant to treat these fetal remains like any other dead person.

But according to Delaware state law, fetal remains are only considered “human” if they weigh more than 350 grams or are at least 20 weeks into gestation, which is at the very tail end the state allows abortions to proceed.

That’s why most fetal remains from an abortion are considered medical waste, and mananged under the Department of Natural Resources and Envriomental Control, which requires pathological waste (including fetal remains) to be either incinerated, cremated or interred.

Council member James King, one of the two “no” votes, questioned the city’s right to create such a law, saying this should be handled by state lawmakers, not city councils.

City attorney Daniel Griffith says he’d welcome the state legislature weighing in on the matter.

“Well members of the General Assembly are certainly entitled to enact a law that specifically addresses, one way or the other,” Griffith says. “It could adopt every provision in this ordinance. It could go the exact opposite way, it could say, municipalities are not allowed to regulate the disposal of fetal remains. And if it did that, game over.”

Griffith believes the city is entitled to regulate the disposal of fetal remains because state laws on the books right now don’t cover the matter, or interfere with this ordinance.

The other council member opposed to the ordinance, Jose Santos, says the city is going too far in terms of restricting people’s rights under the constitution.

“I believe we have a first amendment right that we must protect,” says Santos. “And instead of protecting it I think we are chipping away at it tonight. The government should not interfere with people’s religious views either in public or in private.”

Santos says many of the emails he received in favor of the ordinance were providing quotes from the bible to support their claims, while many of those opposed claimed their rights as women were going to be infringed.

He says the city shouldn’t be taking the views and opinions of one religion and imposing it on everyone in the city.

Some council members were offended by the late arrival of the Attorney General’s response, coming to the council just five hours before its Tuesday night meeting.

Griffith said he received an email from the Deputy Attorney General with a short bullet list of reasons the measure is unconstitutional on Friday, and expected a more detailed letter on Monday, which didn’t arrive until around 2pm on Tuesday afternoon.

Council member Matthew MacCoy claims the letter being sent at that time was strategic, and its intentions aren’t about providing legal opinion, rather voicing the DOJ’s political will.

Seaford Mayor David Genshaw says he’s proud to bring something substantial to the city council, and says some donors have agreed to help the city bear the costs of any lawsuits. The ACLU has already said it will challenge the ordinance in court.

Roman Battaglia is a corps member with Report for America, a national service program that places journalists into local newsrooms.

Updated: December 15, 2021 at 1:27 PM EST
This story has been updated to include a statement from Planned Parenthood of Delaware
Roman Battaglia grew up in Portland, Ore, and now reports for Delaware Public Media as a Report For America corps member. He focuses on politics, elections and legislation activity at the local, county and state levels.
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