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Delaware AG sues town over fetal remains ordinance

January 11, 2022 GMT

DOVER, Del. (AP) — Delaware’s Democratic attorney general filed a lawsuit Tuesday challenging a small town’s passage of an ordinance mandating burial or cremation of fetal remains.

The Seaford town council passed the ordinance last month regarding disposal of fetal remains following any abortion performed within the city limits. The move came after Planned Parenthood opened a facility in Seaford in September, its first clinic in southern Delaware since a Rehoboth Beach location closed in 2011.

State officials are asking a Chancery Court judge to declare the ordinance invalid under Delaware law and to issue a permanent injunction prohibiting it from being enforced.

The ordinance makes clear that women have the right under state and federal law to get an abortion, while also noting that courts have held that the disposal of fetal remains can be regulated. The ordinance also states that Delaware gives municipalities broad “home rule” powers.

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Attorney General Kathleen Jennings warned town officials before Tuesday’s court filing that the “anti-choice” ordinance is pre-empted by state laws regarding disposal of human remains and medical waste, as well as state regulatory powers over health care facilities.

State officials also argue, for example, that a fetus that is aborted before 20 weeks of gestation or which weighs less than about 12.5 ounces, is not considered a dead human under Delaware law. Therefore, most elective abortions would not result in a “dead body,” according to Jennings.

A dead body cannot be buried or cremated without a permit, and a permit cannot be issued without a death certificate, and “a death certificate can only be issued for a dead human body,” according to the state’s complaint.

Jennings also argues that the ordinance would pose a hardship on women by forcing them to pay for burial or cremation, even though a woman could opt not to select either option. In that instance, the abortion facility would be left to decide, at its expense, how and where to dispose of the remains.

“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,” Jennings said in a statement. “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.”

The statement included supporting comments from officials with Planned Parenthood, the American Civil Liberties Union and the Delaware chapter of the National Organization for Women.

Seaford city solicitor Daniel Griffith did not immediately respond to an email seeking comment.

The city council reviewed a draft of the ordinance in September but delayed a scheduled Oct. 12 vote after the attorney general and the ACLU of Delaware raised concerns about its constitutionality. On Dec. 14, despite threats of litigation, the council voted 3-2 to approve the ordinance.

The council voted on Dec. 30 to stay enforcement of the ordinance, but not its Jan. 22 effective date. The stay of enforcement was purportedly to see whether the General Assembly might enact legislation that could resolve the issue, but the council could vote to lift it at any time.