Lawsuit pending over Seaford’s fetal remains ordinance

Delaware Attorney General Kathleen Jennings says she plans to sue the city of Seaford after its council passed an ordinance Dec. 14 regulating how abortion clinics dispose of fetal remains.

“I am left with no choice but to do exactly what the councilmen were warned of: sue one of our own cities on behalf of the people of our state,” wrote Jennings. “And in the end, this ordinance’s inevitably short life span will accomplish nothing other than a colossal waste of taxpayer money.”

Seaford’s all-male council voted 3-2 in favor of an ordinance that establishes “a process for the disposition of fetal remains for pregnant women seeking abortion within the City of Seaford.”

Hours before the vote, Jennings emailed a letter advising councilmen that they lack the legal authority to regulate disposal of fetal remains, which is regulated by the state. Jennings advised the council to withdraw the ordinance, and instead approach the General Assembly and relevant agencies regarding disposal of fetal remains.

“Under current state law, we believe that only the Delaware General Assembly has the authority to address the conduct targeted by the ordinance and even then, that they may only do so consistent with the Constitutions of the United States and the State of Delaware,” she wrote.

The ordinance requires that a woman be allowed to decide whether the remains from a miscarriage or abortion are cremated or interred, and that the abortion facility keep a record of it. In a case in which a woman declines, the facility would make the decision on whether remains are cremated or interred. A woman who wants to use a facility other than the one provided by an abortion or healthcare facility would do so at her own expense, the ordinance states.

Ultimately, Seaford’s ordinance on how fetal remains are disposed is at odds with state regulation.

State law regulates that pathological waste, including fetal remains, be incinerated, cremated or interred. “The Board of Funeral Services oversees the individuals responsible for interments and cremations, while the incineration of pathological waste is handled by private companies that contract with medical providers,” Jennings’ letter states.

The Division of Public Health regulates the disposal of human remains by cremation or interment. A 20-week fetus would be considered a human remain.

The Seaford ordinance requires cremation or interment only. If cremains are not given to the woman for disposal, the ordinance states, a facility can only place the cremated fetal remains in a grave, crypt or niche; or scatter the cremains in a dignified manner, including in a memorial garden, at sea, by air, or at a lawful scattering ground; or any other lawful manner. 

“It is the intent of the City of Seaford to create a mechanism for fetal deaths occurring within the City of Seaford to protect the rights of its citizens and all those engaged in health care and abortion related activities, while providing a mechanism for the dignified disposal of any such fetal remains following a fetal death in Seaford,” the ordinance states. 

In September, Planned Parenthood of Delaware opened its Seaford clinic that provides abortions for women who wish to terminate a pregnancy – the first facility to open in Sussex County after the Rehoboth-area facility closed a decade ago.

The timing of the ordinance is no coincidence, said Ruth Lytle-Barnaby, president and chief executive officer of Planned Parenthood of Delaware.

“Seaford City Council voted 3-2 Tuesday night in favor of an ordinance that would force patients who have miscarriages or abortions to bury or cremate the fetal remains. The council has effectively forced a funeral ritual on patients unlike that required for any other medical procedure,” she said. “Despite what supporters may say, this measure does absolutely nothing to improve patient care. On the contrary, it is designed to make it more difficult for healthcare providers to offer reproductive health services in our community and to shame individuals who seek abortion.”