Delaware judge overturns Seaford abortion ordinance after state AG sued

Kathy Jennings, Delaware’s Attorney General. (Cris Barrish/WHYY)

Kathy Jennings, Delaware’s Attorney General. (Cris Barrish/WHYY)

A Seaford ordinance that required burial or cremation of fetal tissue following an abortion or miscarriage has been invalidated by a Delaware judge.

Chancery Court Vice Chancellor J. Travis Laster ruled against the ordinance which was enacted by Seaford council on December 14. Laster’s ruling said that a municipality like Seaford cannot enact a law that directly conflicts with state law.

“This ruling firmly rejects a clearly illegal and harmful attempt to nullify state law,” said Delaware Attorney General Kathy Jennings. “It protects residents and visitors of Seaford from a cruel and frankly hateful policy. And it makes clear that Delaware remains a safe haven for choice and reproductive freedom.”

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Jennings had threatened to sue Seaford before council’s action late last year. In January, she made good on that threat, even though council voted for an indefinite stay on implementation on Dec. 30.

Jennings’ suit pointed out the ordinance overlaps several areas already covered by state law, including regulations of the treatment and disposition of pathological waste, including fetal tissue. Her court complaint also said state laws already cover health care facilities and reporting requirements for spontaneous fetal death and induced termination.

Seaford council members voted 3-2 for the ordinance that was largely based on a similar measure approved statewide in Indiana when former Vice President Mike Pence was governor.

“I believe the fetal remains deserve a dignified handling,” said Seaford Councilman Matthew McCoy before the December vote. “I believe this is the right thing to do, and I believe our community has vocalized that to us throughout this process.”

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The Seaford ordinance was introduced just weeks after Planned Parenthood of Delaware confirmed it would open a clinic there, the first such facility in southern Delaware since a clinic in Rehoboth closed its doors in 2011.

The court victory for Jennings comes just days after the U.S. Supreme Court overturned Roe v. Wade, but that decision had no bearing on this case, because the AG’s argument was based on Delaware law, in line with the Supreme Court’s decision to hand abortion regulation back to the states.

“The U.S. Supreme Court has unleashed a wave of extremist, draconian laws across our country,” Jennings said. “That wave stops here.”

In addition to invalidating the ordinance, Chancellor Laster ordered Seaford to pay the state’s court costs.

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