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AG : Delaware city’s abortion ordinance unconstitutional

December 15, 2021 GMT

SEAFORD, Del. (AP) — A small Delaware city passed an abortion ordinance Tuesday that the state’s attorney general has called unconstitutional.

The Seaford City Council voted 3-2 in favor of the measure that requires the burial or cremation of “fetal remains” from any abortion performed in the city, The News Journal reported.

Critics argue the ordinance creates extra barriers to abortion services, but supporters say it’s about the dignified disposal of remains.

Nicole Theis, president of Delaware Family Policy Council and a Seaford resident, argued that the ordinance is narrow and doesn’t impede a person’s right to an abortion.

“These are human remains that deserve the dignity to be handled properly, and we’re just giving people the option to do that,” Theis said.


But ACLU of Delaware Executive Director Mike Brickner said a lawsuit is likely in the city’s future.

“We want to send a very clear message to other communities that might be considering similar types of legislation that they will also be met with significant public pushback, and also with potential court challenges,” Brickner said. “That we in the state of Delaware guaranteed a person’s right to access an abortion — that’s part of our state law, and that cities cannot go against the fundamental rights that the state has guaranteed.”

The measure was introduced in September amid preparations for the opening of the area’s first Planned Parenthood clinic in Seaford. It was tabled in October after the state Department of Justice asked the council to wait until the state office could determine “whether this ordinance is consistent with federal and state law.”

In a letter submitted Tuesday afternoon, Attorney General Kathleen Jennings said state law would preempt the ordinance and it was “fatally subject to injunction because it is unconstitutional.”

Councilman James King, one of two members who voted against the ordinance, argued that the issue should be taken up in the General Assembly, not at the city level where the municipality will be responsible for absorbing the costs of future litigation.