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Seaford abortion ordinance could have a hard time standing up in court

Sophia Schmidt, Delaware Public Media

The city of Seaford faces two separate lawsuits over a new city ordinance on abortion. But the ordinance could be blocked by courts before it even comes into effect.

Pro-choice activists were frustrated with the results of a Seaford City Council vote on a new ordinance requiring the cremation or internment of fetal remains from any surgical abortion or miscarriage.

Now the city will have to fight court battles against both the ACLU of Delaware and the State Attorney General over the legality of the measure.

Widener Delaware Law School professor John Culhane says the city doesn’t have much ground to stand on in defending the ordinance.

“The fetal remains laws themselves have been struck down in a number of courts as imposing an undue burden on a woman’s right to make that decision about abortion,” he said.

In 2018, a federal judge blocked a Texas law imposing similar mandates on those grounds, saying the law imposed burdens on women, and provided little to no benefit.

And the U.S. Supreme Court upheld an Indiana provision requiring funeral procedures for fetal remains in 2019, but left open future challenges to fetal remains laws in the future.

State Attorney General Kathy Jennings is leading one of the lawsuits after her department sent a letter to the city outlining a litany of state laws that trump any city ordinance.

Two of those points surround defining what a dead body is, stating anything under 350 grams or earlier than 20 weeks into gestation instead counts as pathological waste, which is regulated by DNREC.

“And it seems at least implicitly to rule out — and maybe almost explicitly — to rule out this kind of law as in defiance of it,” Culhane said. “And so I think they might just be able to go into court quickly and just win on the fact that a state law trumps any local ordinance. I think that’s quite a realistic possibility.”

Culhane says the city could be hedging its bets on the U.S. Supreme Court, which is currently considering a case that could overturn Roe V. Wade.

But Delaware state lawmakers codified Roe V. Wade in 2017, meaning any federal decision would have little impact on how the state treats abortion access.

Culhane says it’s possible the lawsuits could get the ordinance blocked in court before it takes effect mid-January.

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

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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