The Delaware Department of Justice has sued one of its own municipalities – something that has rarely happened in the state’s history, according to the department’s spokesperson Mat Marshall.
Attorney General Kathy Jennings carried out her promise and filed a lawsuit Tuesday against the city of Seaford after it passed an ordinance that she said is contrary to state law.
The ordinance in question, which Seaford City Council approved in a 3-2 vote on Dec. 14, requires the burial or cremation of fetal remains from abortions performed or from miscarriages that occur in the city.
DELAWARE AG: Seaford ordinance passed Tuesday would restrict abortion unconstitutionally
While supporters of the local legislation said it was simply about ensuring the “dignified disposal” of fetal remains, opponents argued that the ordinance further stigmatizes those seeking abortions and adds an administrative and financial burden on medical facilities that provide abortion services or care related to miscarriages.
The city’s first Planned Parenthood clinic opened just days before the vote, but how exactly this ordinance would impact this new clinic and other medical facilities is not yet clear.
Even though the lawsuit claims that the ordinance is part of a nationwide movement to “make it more difficult and costly for pregnant persons to be able to receive lawful reproductive healthcare services, and more difficult for healthcare providers to provide those services,” that argument is not the main reason behind the attorney general’s action.
Instead, the state explains in the suit how it believes Seaford’s legislation is preempted by state law.
NATIONAL EFFORTS:Is Seaford part of national effort to get around state abortion laws?
EARLY DISCUSSIONS:Seaford takes aim at abortion-rights. But burial, cremation proposal on shaky legal ground
READ THE LAWSUIT AT THE END OF THIS STORY
Attorneys for the Department of Justice say Delaware has already enacted laws and regulations for medical services, the treatment of human remains and medical waste, including fetal remains, and the reporting of pregnancy terminations.
The lawsuit asks the court to declare Seaford’s ordinance invalid because of its conflicts with state law. It also asks the court to issue a preliminary and permanent injunction against the city to prohibit lifting the city’s temporary stay on enforcement or prohibit the effectiveness and enforcement of the ordinance.
Attorneys have sought an expedited proceeding due to the potential impacts the ordinance would have if it takes effect.
“The law is clear,” Jennings said in a statement. “Seaford’s ordinance is precluded by State law. This ordinance is part of a national wave of anti-abortion policies funded by extremists who would have our country dragged fifty years into the past. Left unchecked, it threatens serious, irreparable, and unconstitutional harm. And at the end of the day, it will amount to little more than an expensive publicity stunt.”
Lawsuit highlights
- State law already regulates disposition of human remains, including fetal tissue. Fetal tissue less than 350 grams weight or prior to 20 weeks gestation is not considered “human remains,” thus death certificates would not be issued, which are necessary to obtain permits for both cremation or burial.
- State law also regulates disposal of pathological waste, which includes fetal tissue. The Department of Natural Resources and Environmental Control is empowered with disposal.
- Seaford’s fetal remains ordinance also attempts to regulate medical facilities despite the state’s regulatory authority over those facilities. The legislation seeks to limit how long a patient has access to a medical facility’s bed for recovery following reproductive health procedures.
Seaford Mayor David Genshaw said he was “disappointed” that the state proceeded to file a lawsuit after the city had voted to delay enforcement of the ordinance and attempted to work with the state throughout the process.
He said that this is not about global or national issues, as the attorney general argues, but instead about the values of the small community of Seaford.
“The city of Seaford and the elected have acted in good faith with the state,” he said. “But this is a matter that I think is at the core of who we are as people and how do we treat life?”
What does ‘stay enforcement’ mean?
The attorney general’s lawsuit comes after Seaford City Council attempted to dodge litigation on Dec. 30 by voting to “stay enforcement” of the ordinance indefinitely. That means Seaford would not enforce the ordinance until such time council votes to end the stay.
While this delayed enforcement seems to hold off any immediate impact of the ordinance, Jennings directly takes issue with the “stay” in Tuesday’s lawsuit.
Whether city council members thought this was “delaying the inevitable” or that it “shows a good faith effort on part of the city,” council members voted unanimously to stay the enforcement.
The main reason for this decision, council members and City Solicitor Dan Griffith said, was to give the General Assembly an opportunity to legislate in this area when it reconvenes this week.
Griffith had earlier argued that the reason Seaford could pass this ordinance was because the state did not have any legislation specifically addressing the disposal of fetal remains. But if that changed, he said, Seaford would react and follow state law.
Genshaw agreed and said that he believes the state needs to be clear on how fetal remains should be handled in Delaware.
“I would love the state to come alongside and say, ‘you know what, we agree that this practice probably hasn’t been looked at, and we as a state should come out on this and take a stand,” Genshaw said.
Staff members in the Department of Justice strongly disagreed and said that no new law is needed.
“The city may disagree with the state’s policy choices, but it cannot disregard them,” the lawsuit states. “The state has in fact already enacted comprehensive laws to regulate the disposition of fetal tissue (and human remains), as well as other subjects addressed by the ordinance.”
Delaware law limits cremation and burial to dead bodies, which does not include fetal tissue that weighs less than 350 grams, or is prior to 20 weeks gestation. To cremate or bury a human body, a death certificate and permit must be issued. Only fetal tissue that weighs more than 350 grams, or is after 20 weeks gestation, can receive a death certificate, according to the attorney general’s suit.
Seaford’s ordinance disregards the state’s law on this matter, legislating that abortions or miscarriages during any point of pregnancy must be cremated or buried.
Still further, Delaware law empowers the Department of Natural Resources and Environmental Control with disposal of pathological waste, which includes “all human tissues and anatomical remains, including fetal tissue…” This waste “must ‘be incinerated, cremated or interred” in accordance to Delaware code, according to the suit.
Seaford’s ordinance also attempts to regulate medical facilities despite the state’s authority over those facilities.
“By imposing additional requirements on these facilities, including prohibiting these facilities from providing beds or other accommodations to patients for a stay exceeding twenty-four hours’ duration, regardless of medical need, the ordinance clearly and unambiguously conflicts with this comprehensive state regulatory framework and is therefore preempted,” the lawsuit states.
Seaford’s anticipation of state legislation is not off base.
Delaware House Majority Leader Valerie Longhurst, a Democrat from Bear, said legislators are looking to protect the reproductive rights of women in the state and will likely introduce legislation that ensures abortion access and counteracts Seaford’s fetal remains ordinance.
“We are looking into safeguarding rights,” she said. “There is no reason why we should be going backwards, and municipalities shouldn’t be taking the law into their own hands when it comes to things of this nature.”
These efforts, Longhurst said, are being taken in conjunction with conversations with the Attorney General’s Office.
“I would anticipate that if the General Assembly passes legislation on this issue, Seaford would take action to withdraw the ordinance,” Griffith said.
State Sen. Bryant Richardson, a Seaford Republican, said he expects legislation to be drafted that would “nullify what Seaford is trying to do,” but he has no plans to push back or draft legislation that would reinforce the Sussex County city’s fetal remains ordinance.
In the past, Richardson has attempted to tackle abortion in the legislature, sponsoring measures and floating the idea of making Seaford or Sussex County sanctuaries for the unborn, locally outlawing abortions.
Echoing the sentiments of proponents of Seaford’s law, Richardson said it would have done nothing to prevent abortions and he’d rather focus his efforts on the procedure itself.
“I’m more interested in saving the lives of the unborn rather than figuring out ways to handle the remains,” he said.
Beyond debating the necessity of more state legislation, the attorney general also expressed concern that the City Council could reinstate the enforcement of the ordinance at any point.
If the state legislature does not act, city council members and the solicitor agreed that the council would likely approve a motion to reinstate enforcement based on the City Council’s earlier support of the ordinance.
Because the ordinance would still go into effect on Jan. 22, 30 days after City Council approved it, the city can enforce the ordinance as soon as it votes to remove the “stay,” according to the Attorney General’s Office.
In the lawsuit, the attorney general is asking the court to consider a preliminary injunction that would prevent the city from reinstating enforcement of the ordinance during the legal process.
“Declaring a unilateral timeout doesn’t change the law,” Jennings said in an earlier emailed statement. “Seaford’s attempted restriction of reproductive health is still plainly illegal, and our responsibility to uphold the law is unchanged.”
While the state was clearly undeterred by Seaford’s delayed enforcement, it did have some impact. Since the ordinance is not immediately impacting people in Seaford, the American Civil Liberties Union of Delaware has pressed pause on its legal challenges.
That doesn’t mean the ACLU has taken legal action completely off the table, though, said Executive Director Mike Brickner.
“Certainly the fact that it’s still on the books is a problem,” Brickner said, “and that is why I would strongly recommend that the city would fully repeal the ordinance.”
Leading up to a lawsuit
It’s clear that this legal challenge didn’t come without warning signs.
While other states have passed similar “fetal remains” laws – such as one in Indiana that was upheld in the Supreme Court in 2019 – this may be the first time that a local jurisdiction has attempted to regulate the disposal of fetal remains.
This issue of authority is one that the Department of Justice has raised in the past, and Jennings signaled early on that she was concerned that Seaford was legislating in an area that typically falls under the state’s jurisdiction.
Hours before what Seaford calls its “Dignity Ordinance” passed, Jennings submitted a five-page letter that outlined her legal opinion and ultimately advised the city to withdraw the ordinance and leave this type of legislation up to the General Assembly.
She argued that the city did not have the legal authority to enact the ordinance, especially since state agencies already oversee the disposal of fetal remains and regulate the operations of medical facilities.
“There are strong federal and state law bases for declaring the Ordinance illegal and unconstitutional which would support relief in the form of a temporary and permanent injunction,” Jennings wrote. “Continuing to pursue passage of the Ordinance would likely result in expensive and time-consuming litigation.”
Shortly after Seaford passed the ordinance, Jennings gave a statement that was even more explicit about her plans to file suit.
“I am left with no choice but to do exactly what the councilmen were warned of: sue one of our own cities on behalf of the people of our state,” she wrote. “And in the end, this ordinance’s inevitably short life span will accomplish nothing other than a colossal waste of taxpayer money.”
Now, it seems, Jennings is ready to follow through on that promise.
What’s next
With the lawsuit filed in the Court of Chancery, attorneys now must wait for responses from Seaford and a determination by a judge on whether a preliminary injunction on the ordinance will be issued.
Seaford’s mayor defended the city’s ordinance, but did not elaborate on what the municipality’s next steps in the matter will be now that the attorney general has sued the community.
“I had a responsibility and a duty to bring this ordinance forward,” Genshaw said. “Once we had done the research and saw that others had done it, I was under conviction, obligation to bring this forward. I’m proud that the City Council passed and approved it and at this point, I’m going to leave the rest of the results in God’s hands.”
