Delaware AG sues town over ordinance requiring cremation or burial of fetal remains

Delaware Attorney General Kathy Jennings (D) on Tuesday filed a lawsuit against the city of Seaford over an ordinance scheduled to go into effect later this month that would require anyone who has an abortion or experiences a miscarriage to pay for the fetus to be interred or cremated.

“It brings me no joy to sue one of our own cities,” Jennings said in a statement.

“But three councilmen backed by dark, outside money have left me with no choice. The law is clear: Seaford’s ordinance is precluded by State law,” she said.

“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. 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 ordinance was passed last month and The News Journal noted that critics have condemned it as further stigmatizing abortions and adding additional financial burdens on medical facilities that perform abortions or provide care following miscarriages.

A person who receives an abortion or experiences a miscarriage will be required to choose between internment or cremation and pay for the service. If they refuse to choose, then the medical facility must choose for them and foot the cost.

The new rule was unveiled one month after Planned Parenthood of Delaware confirmed it would be opening its first health center in Sussex County, where Seaford is located, since another facility closed down in 2011.

In her lawsuit, Jennings argues that Delaware state law “comprehensively regulates” the disposal of human remains, including fetal tissue, and leaves no room for further policy on the matter.

The suit argues that fetal remains weighing less than 350 grams do not qualify as human remains under Delaware state law and cannot be subjected to the Seaford ordinance. Cremation and interment requires a death certificate which is only issued for human remains.

Jennings has asked the court to declare Seaford’s ordinance, which is set to go into effect Jan. 22, invalid. 

Seaford said in a press release on Tuesday that the ordinance “has never been about abortion.”

“There are at least 13 states that require fetal remains to be cremated or buried; and the US Supreme Court has upheld the constitutionality of these laws, saying that the government has a legitimate interest in the disposal of fetal remains,” Seaford City Solicitor Dan Griffith said.

“We anticipate that the lawsuit will be dismissed as moot (because the Ordinance has been stayed) so that the General Assembly can address this issue,” said Griffith. “It is disappointing that the AG is using our overcrowded court system and taxpayer money to pit governments against each other.”

This story was updated at 9:31 a.m.