Seaford City Council planned to vote on an ordinance Tuesday night that would require that aborted remains be buried or cremated, but changed course after getting a letter from the ACLU of Delaware objecting to the law as a violation of state law and the U.S. Constitution, as well as another letter from the state Attorney General's office asking them to table it.
City solicitor Daniel Griffith opened the meeting by telling council members that the ACLU's letter, which said they would sue over the ordinance, had come in a few hours prior.
The council then went into executive session to discuss the issue, and when they came out, Griffith also mentioned the attorney general's letter, which asked Seaford to table the law to allow time to determine if it conflicted with state or federal law.
Council members unanimously voted to table it until they got more information.
The ordinance, which had its first reading at the Sept. 28 Council meeting, would also require girls under 16 to get consent from a parent or guardian on the burial or cremation decision.
It comes soon after Planned Parenthood announced a new clinic in Seaford that will provide abortions. That has been met with protests near the new facility, and most recently a march in support of legal abortion that drew counterprotesters.
Seaford Mayor David Genshaw said in the Sept. 28 City Council meeting that aborted remains are treated as medical waste, and "that does not fit the morals and values of our community."
The Southern Delaware Alliance for Racial Justice, which helped organize the Oct. 2 "Bans Off Our Bodies" rally in Seaford, called the ordinance an unconstitutional burden and an effort to limit access to abortion via unnecessary hurdles and make it more difficult for clinics to provide care.
Seaford solicitor Daniel Griffith argued the opposite at the Sept. 28 meeting, saying similar legislation "has been found to be constitutional, it has been found to not be a restriction on abortion rights. It is simply a very narrow way of making sure that fetal remains are not treated like medical waste."
A similar law in Indiana led the way for these kinds of measures; in 2016 the U.S. Supreme Court upheld that law by a large margin.
Council members James King and Jose Santos both said at the meeting that they had heard from residents about the proposal; King read a message strongly condemning the ordinance that said, among other things, that Seaford would seem like a community that is not accepting or supportive of women's rights.
"I also received phone calls, messages from people in the community," Santos said. "All of them were women, and none of them were in favor of this ordinance."
He said they were concerned about a council of all men making rules on an issue that they would not face themselves. "They did not think that this is a decision that we should be taking on."
Santos also suggested that by passing the ordinance, they might be imposing their religious beliefs about when life begins on their constituents.
Griffith, who said he was only offering legal advice and not supporting or opposing the law, wondered why people of other religions would care about how remains were treated if they didn't view them as human remains.
He also said the ordinance was written very similarly to others passed around the country and "we're very confident that this would withstand any legal challenge."
The Southern Delaware Alliance for Racial Justice argued in its release that the ordinance conflicts with Delaware law in several ways, in that it requires parental consent for younger girls while Delaware law only requires notification; and that it offers no way to waive parental involvement, which Delaware law does. It also adds other requirements that Delaware law doesn't, the alliance argued, and state law already covers how medical tissue is disposed of.
King asked about possible conflicts with state law in the meeting.
"There is no Delaware law that provides one way or the other with respect to disposition of fetal remains," Griffith said. "... This is not in conflict with Delaware law."
The SDARJ strongly hinted about a lawsuit in its press release, saying if Seaford passes the law, it would be making "an unconstitutional, illegal mistake that will hurt the women of Seaford and embroil the City in litigation that will cost enormous amounts of money."
It's unclear when or if Seaford will bring it up again.