Delaware Attorney General Kathy Jennings on Tuesday filed suit against the City of Seaford in the state’s Court of Chancery over an ordinance relating to the manner by which abortion clinics must dispose of fetal remains.
Now, Seaford’s mayor and city solicitor are pushing back.
The ordinance, passed by Seaford’s all-male city council in December by a 3-2 margin, requires fetal remains resulting from surgical abortion procedures or miscarriages that take place at health care facilities to be either cremated or buried.
The three councilmen who voted for the ordinance include Dan Henderson, Orlando Holland and Matthew MacCoy. Those who voted against include James King and Jose Santos.
At the time of its passage, Seaford Mayor David Genshaw said that current methods of disposing of fetal remains offend the “morals and values of our community.”
Under the ordinance, if a patient elects to have the fetal remains cremated, there is no cost to the patient. If she decides to bury the remains, the patient would be on the hook for any associated costs. A patient could also leave the decision to the health care provider.
Mayor Genshaw said in an interview with Delaware/Town Square LIVE News that he has assurances from the funeral parlors in Seaford city limits that they would not charge for the cremation of fetal remains.
In a press release announcing the suit, Jennings called the ordinance anti-choice, contrary to state law and “backed by dark, outside money,” arguing that it would ultimately amount to “little more than an expensive publicity stunt.”
Genshaw said the council never anticipated the ordinance would be so controversial.
“Typically in the news media, it goes towards being an abortion ordinance,” he said. “It is very, very clear in the ordinance that it does not involve the rights of a woman to an abortion.”
He said that the council understands and respects that women in Delaware have a legal right to have an abortion, but that this ordinance has everything to do with what happens after an abortion — the method by which remains are handled.
“It is our belief and certainly our community supports and believes that they should be handled in a dignified manner versus discarded as waste,” Genshaw said.
Without the ordinance in place, he noted, fetal remains resulting from abortions are “boxed up and a medical waste truck comes and picks them up.”
Jennings said following the announcement of the lawsuit that she gets no joy out of suing one of Delaware’s own cities, but that, in her view, “three councilmen backed by dark, outside money have left me with no choice.”
But Genshaw said that neither the city nor any councilperson has received any money — let alone “dark money” — to push the ordinance.
“The city did receive one check and we returned that to that person and said, ‘We appreciate the support but we’re not receiving money on this.’”
Instead, the mayor said, donations are being directed to organizations like the Delaware Family Policy Council, a group which, according to its website, is “concerned about the breakdown of family values in society.”
Organizations like that, Genshaw explained, would step in to support the city if legal battles should arise — in the same way that groups like Planned Parenthood and the ACLU fund lawsuits in the opposite vein.
“I think what’s interesting to me is that somehow it’s shocking that a community would support something like this but yet the other side of this story receives money all the time,” Genshaw said.
“I love that she termed it as dark money,” he continued. “I guess that creates some sort of sense of evil. But these are just local neighbors, looking to offer support, knowing that this is a difficult matter and want to remove any kind of fear that this may somehow financially put the town in a bad place.”
In her statement Tuesday, Jennings charged that the ordinance is part of a “national wave of anti-abortion policies funded by extremists who would have our country dragged 50 years into the past,” and argued that if the ordinance is allowed to remain on the books, it threatens “serious, irreparable and unconstitutional harm.”
“There’s no extremists,” Genshaw said. “It’s just local people that have offered to help out.”
The fetal remains ordinance was introduced after Planned Parenthood of Delaware opened a clinic within Seaford city limits. The clinic is the organization’s first in Sussex County since its Rehoboth Beach location closed in 2011 and is only the second clinic on the Delmarva Peninsula south of Dover.
Genshaw said Seaford didn’t have any say in Planned Parenthood’s decision to open a clinic in the town, but that they have “every legal right to be here.”
“They met all the codes and they built in a facility that was already pre-approved for medical offices,” he said. “I think a lot of people thought that the City of Seaford went out and attracted Planned Parenthood to come to Seaford, but we had no idea they were coming.”
The mayor said he first received the draft of the ordinance from the city’s legal counsel during the summer and “thought about it and prayed about it” before bringing it to the city council in the fall for its first reading.
The council tabled the ordinance at the request of the state because they wanted to “have further discussion about it,” according to Genshaw.
He said the city’s legal counsel reached out to the Department of Justice to try and determine the best path forward but didn’t hear back for “practically 60 days.”
Jennings sent a letter to the council “just hours before we met” on Dec. 14, Genshaw said, “threatening, ‘You can’t do this.’”
After the ordinance passed, Jennings and the ACLU of Delaware responded with statements saying they intended to file litigation. On Dec. 30, the council voted to “stay enforcement” of the ordinance, meaning it would remain on the books but the city would not enforce the measure.
The self-imposed “stay” can be lifted by the council at any time, according to Jennings, who said that with “minimal notice,” Seaford could “enforce the ordinance immediately.”
Ruth Lytle-Barnaby, president and chief executive officer of Planned Parenthood of Delaware said in the press release from Jennings’ office that Seaford’s ordinance is clearly “politically and ideologically driven,” and “though the measure purports to be about dignity, it continues the stigma around abortion and would make it harder for patients to access abortion and miscarriage care.”
Individuals who choose to undergo abortions, Lytle-Barnaby said, “need support and understanding, not unlawful statutes that shame them.”
But Genshaw said the ordinance has nothing to do with abortion at all.
“The ordinance is about fetal remains and how they are handled,” he said. “Somehow that gets lost in the narrative of abortion and rights and costs — and I think we’ve answered all those questions very clearly — we’re not taking anyone’s rights away, there’s no cost involved and Planned Parenthood has a pathway to offer this to their patients already.”
Mike Brickner, executive director of the ACLU of Delaware, said the ordinance is both illegal and unconstitutional, and that “abortion is a guaranteed right [in Delaware] regardless of what’s happening on the national landscape.”
He warned that the organization is ready to take legal action if Seaford decides to enforce the policy “or if any other city in Delaware tries to pass a law that would restrict access to abortion.”
Genshaw was taken aback by the fact that the state’s attorney general would issue a press release that included statements from Planned Parenthood and the ACLU.
“In her letter, I noticed that she included Planned Parenthood and the ACLU,” he said. “It’s a shame she didn’t include the people of Seaford. Those are the people she is impacting. This is what those people want.”
Jennings asserts that the ordinance is unlawful in that it preempts state laws relating to the treatment and disposition of human remains and pathological waste, including fetal tissue, and also laws relating to healthcare facilities generally and on reporting spontaneous fetal death and induced termination.
The complaint, filed Tuesday in the Court of Chancery, seeks a declaration that the ordinance is invalid, as well as an injunction prohibiting the city from lifting its temporary stay or from enforcing the ordinance.
An accompanying motion for expedited proceedings requests that the court schedule a hearing on the state’s motion for preliminary injunction within the next 90 days.
In a statement Tuesday, City Solicitor Dan Griffith stated “there are at least 13 states that require fetal remains to be cremated or buried; and the US Supreme Court has upheld the constitutionality of these laws, saying that the government has a legitimate interest in the disposal of fetal remains.”
“Seaford’s uses the same language as these laws cited above. The City of Seaford has always recognized it cannot enact any Ordinance which is contrary to State law and has repeatedly invited the State to participate in the process, with no success,” Griffith said.
He argued that Seaford has done “everything possible” to avoid litigation, including tabling the ordinance and providing the legal basis to enact the ordinance at the state’s request.
“It should also be noted,” Griffith said, “most recently, the City stayed enforcement of the Ordinance, when the House Majority Leader announced she was working with the AG on legislation which would address this.”
He concluded that the city has no desire to litigate an ordinance, the enforcement of which has already been stayed pending action by the General Assembly.
Griffith concluded that he anticipates the lawsuit will be dismissed as moot because it has been stayed, and said it’s disappointing that Jennings is “using our overcrowded court system and taxpayer money to pit governments against each other.”
For Genshaw — legal challenges aside — the ordinance comes down to one simple question.
“The question is, how do you think fetal remains should be handled? Should they be handled in a dignified manner? Or do you agree they should be discarded as trash?”
“When asked point-blank,” the mayor said, “overwhelmingly, we are seeing that people believe they should be handled in a dignified manner.”
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