A Delaware Chancery Court judge agreed with state attorneys Wednesday, ruling that Seaford’s fetal remains ordinance is preempted by state law, which dictates the disposal of medical waste, including fetal remains.
State Attorney General Kathy Jennings filed suit against the rural Sussex County city in January, after its City Council passed an ordinance requiring fetal remains be cremated or buried after a miscarriage or abortion.
Wednesday’s decision ruled that the ordinance is “preempted and invalid” since it directly conflicts with Delaware’s laws requiring an “official record of death before human remains” can be cremated or buried.
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In Delaware, a death record can only be issued if the fetal remains are both a result of a miscarriage and “either weigh more than 350 grams or otherwise indicate a gestational stage of 20 weeks or more.” Fetal remains from an abortion cannot receive an official death record.
“The ordinance conflicts with this statutory scheme in that it requires that all fetal remains resulting from an abortion or miscarriage be cremated or interred,” Vice Chancellor J. Travis Laster ruled. “State law does not permit that result.”
The decision comes less than a week after the U.S. Supreme Court overturned Roe v. Wade, removing the constitutional right to a legal abortion and handing the power to regulate the medical procedure to the states.
As the possibility of Roe being overturned by the Supreme Court grew, Seaford joined a growing number of jurisdictions across the country attempting to legislate access to abortion services. It became the first municipality in Delaware – and apparently the first local jurisdiction in the country – to pass legislation regulating how fetal remains are disposed.
While Seaford officials and proponents of the ordinance said the legislation was about ensuring the “dignified disposal” of the remains, opponents saw it as an attempt to make access to abortion services more difficult.
Seaford issued a statement Wednesday afternoon expressing disappointment in the court’s ruling, adding that officials had attempted to work with the state to ensure its ordinance would be “consistent with state law, without success.”
“We did not believe that disposing of fetal remains in a dignified manner would be controversial,” the statement reads. “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. While we are disappointed in the court’s opinion, we will abide by its ruling.”
Jennings applauded the Chancery Court’s decision.
“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.”
Jennings said the ruling is particularly important now with the overturning of Roe, a landmark decision that has held for nearly 50 years. Its overturning has opened the door for dozens of states to restrict or ban abortions.
“The U.S. Supreme Court has unleashed a wave of extremist, draconian laws across our country,” she said. “That wave stops here.”
Delaware is one of the few states to have codified abortion as law, and recently expanded access to the medical procedure that could make the First State a destination for abortion services.
Melissa Froemming, president of Delaware NOW, a women’s rights organization, said the ruling is a win for women’s rights.
“We thank the Delaware Department of Justice for standing up for women in our state, and for fighting to ensure that women’s right to privacy and right to make decisions regarding their bodies remain protected. Our legislators have codified Roe — abortion is legal in Delaware — but legislators change. The Seaford ordinance and Friday’s Dobbs decision by the Supreme Court have reinforced the importance of protecting and expanding the right to abortion as health care in Delaware using every tool possible.”
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