December 15, 2021
A small city in southern Delaware has passed a law requiring that the remains of aborted fetuses be cremated or buried, prompting the state's attorney general to pursue legal action.
Seaford City Council passed the ordinance in a 3-2 vote Tuesday amid a national reckoning over abortion rights. By Wednesday afternoon, Delaware Attorney General Kathy Jennings had vowed to sue the city.
"This has been an alarming couple of years for the American majority who believe that abortion should be safe and legal, and who see the nationwide wave of medieval – and frankly hateful – anti-choice policies for exactly what they are," Jennings posted on Twitter.
"To those people, let me say this: Delaware will not move backwards on my watch. This ordinance is not who we are. And it will not withstand our legal challenge."
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. And in the end, this ordinance’s inevitably short life span will accomplish nothing other than a colossal waste of taxpayer money.— Attorney General Kathy Jennings (@DE_DOJ) December 15, 2021
Last week, the U.S. Supreme Court allowed a Texas law that bans most abortions after six weeks to stand. That came on the heels of oral arguments over a Mississippi law that prohibits abortions after 15 weeks. Many believe the Supreme Court is poised to overturn Roe v. Wade, the 1973 ruling that established access to abortion as a constitutional right.
The topic was likely on the minds of residents of Seaford, a city of about 7,500 people in Sussex County, prior to Tuesday's council meeting. The council's chambers reportedly was at capacity more than an hour before the meeting started.
Some anti-abortion activists, including Nicole Theis, president of the Delaware Family Policy Council, believe the law is constitutional and narrow enough to not limit access to abortion.
"These are human remains that deserve the dignity to be handled properly, and we're just giving people the option to do that," she told DelawareOnline.
But Mike Brickner, the executive director of the American Civil Liberties Union of Delaware, argued that the legislation creates an undue burden.
"It makes it more complex for the patient, and then it also potentially passes a cost onto the clinic or the patient," he said.
Prior to the vote, Jennings had sent a letter to the city council, urging it to reconsider its position, according to ABC 47.
"(The law) would be entirely preempted by state law, incapable of legal enforcement against any person or entity and fatally subject to injunction because it is unconstitutional," she wrote.
Brickner said the ACLU and other pro-choice groups are expected to file lawsuits against Seaford over the new law.
The legislation was first drafted in September in the wake of a new Planned Parenthood clinic opening in Seaford. It's the first time one has operated in Sussex County since one in Rehoboth Beach closed over a decade ago.
A vote on the bill was tabled at a City Council meeting in mid-October following a women's march organized in response to the legislation. Still, Mayor David Genshaw said he was committed to passing it.
"Our community was exceptionally supportive of pursuing handling aborted fetal remains in a dignified manner," he told Delaware Public Media in October.
Though Delaware has backed Democratic presidential candidates since 1988 and has two Democratic senators, downstate Delaware swings conservative, particularly the inland areas of Sussex County.
There, former President Donald Trump received 55% of the vote in 2020 and signs supporting him dot the largely agricultural landscape.
Although New Castle's population still handily outnumbers the southern portions of the state and largely determines which way Delaware leans when it comes to state politics and national elections, towns like Seaford have grown in popularity in recent years as people, particularly retirees, flock to the area from other states in the Northeast in search of a lower cost of living.