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Court invalidates Seaford fetal tissue ordinance

City cannot preempt state law, court says
June 29, 2022

A fetal tissue ordinance enacted by Seaford City Council in 2021 was overturned June 29 by Delaware Court of Chancery.

Following the council vote, Attorney General Kathy Jennings and the Delaware Department of Justice challenged the legality of the ordinance, which would have forced anyone who had a surgical abortion at an “abortion facility” or a miscarriage at a “healthcare facility” to have the fetal tissue interred or cremated at their own expense, despite the hardship on patients and clear preemption by state law. 

In a ruling released Wednesday morning, Vice Chancellor J. Travis Laster ruled that Seaford, as a junior sovereign, cannot enact a law that conflicts directly with law established by the state as the senior sovereign.

“The U.S. Supreme Court has unleashed a wave of extremist, draconian laws across our country. That wave stops here,” Jennings said in a statement. “This ruling firmly rejects a clearly illegal and harmful attempt to nullify state law and to use dark money to return us to the Dark Ages. 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 exactly when those sanctuaries are needed most. I am grateful to the court for its wisdom and to our team for their quick response and tireless work on this case.”

Jennings filed suit Jan. 11 after twice warning Seaford City Council that state law preempted the ordinance. Council passed the ordinance despite those warnings, with a promise that an anonymous outside donor would fund the defense against the state’s incoming lawsuit. The court’s ruling awards costs to the state.

“Planned Parenthood of Delaware is pleased with this decision,” said Ruth Lytle-Barnaby, president and CEO of Planned Parenthood of Delaware, in a statement. “As we expected, Vice Chancellor Laster recognized state law forbids local regulations of the type the city attempted to pass. We are hopeful that we can now focus on providing care to the Seaford area rather than defending ourselves against unnecessary, harmful and legally questionable ordinances. Our sincere thanks go to the Department of Justice for their hard work on this case and their commitment to defending reproductive rights. PPDE will continue to offer top-notch care to all and to fight for your ability to receive sexual and reproductive health services.”

Since the DOJ’s arguments were premised on state law, the state’s case, and the Court of Chancery’s ruling, are unaffected by the U.S. Supreme Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization.

The lawsuit against Seaford was led by Director of Impact Litigation Christian Douglas Wright with support from the attorneys and staff of the Fraud and Consumer Protection Division: Deputy Attorney General Vanessa L. Kassab, Assistant Attorney General Deepinder K. Goraya, and paralegals Zuri Ramsey and Michele Porter. 

 

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