Inside the debate over fetal remains in Seaford
By Andrew Sharp
When it comes to the new Seaford ordinance requiring that fetal remains from abortions and miscarriages be buried or cremated, saying opinions differ is putting it very mildly. And one of the biggest disputes is what the ordinance is all about.
Both sides are gearing up for a legal battle.
Some of the disagreement is among the Seaford Council itself, which passed the measure 3-2 over objections from James King and Jose Santos. Members will hold a special session on Thursday to discuss a proposal to “stay enforcement” of the law, the Delaware State News reported last week, with Mayor David Genshaw reasoning that the city can’t be sued over a law that’s not in effect.
I spoke to representatives of Delaware National Organization for Women, which is partnering with the American Civil Liberty Union’s legal team to prepare opposition to the law, and also reached out to supporters of the measure.
This is what they said about some of the major points of dispute:
Attack on abortion or simply rules on burial
While proponents of the new law fall largely within the anti-abortion camp, they say it’s not about abortion, but the dignified treatment of human remains. Opponents retort that it’s obviously about abortion.
“The ordinance does not restrict abortion in any way. It simply regulates the means of handling aborted human remains,” Nicole Theis, president of Delaware Family Policy Council, said. The Council has been active in opposing abortion as well as the new Planned Parenthood clinic in Seaford.
Seaford Vice Mayor Dan Henderson, one of the three who voted for the new rule, expressed a similar opinion. He said abortion and a woman’s right to choose are the law of the land.
“I can see where some of the pro-choice people might think that it was anti-abortion, but it in no way interferes with that right at all,” he said. He did point to the new Planned Parenthood facility, which offers abortions, as bringing the issue to the forefront.
Delaware NOW isn’t buying it.
“I think it is clear from statements that the mayor has made, and statements that the city council has made, that this is about limiting abortion access … simply deciding that you don't like abortion, and that you don't want it to be offered and finding an excuse to prevent that, is not actually constitutional, is not actually coherent with Delaware law,” said Dr. Nick Beard, chair of the organization’s Reproductive Justice Task Force.
Dr. Nick Beard, chair of Delaware NOW's Reproductive Justice Task Force, speaks at a "Bans Off Our Bodies" rally in Wilmington in October. Photo by Joe Hoddinott, via Delaware NOW
Melissa Froemming, Delaware NOW president, framed the ordinance as part of a national movement, “a greater scheme to break down and destroy women’s rights to abortion as health care in the United States.”
A key dispute at the heart of the ordinance is over what fetal remains actually are. Supporters of the law call them human remains, and opponents define them as medical waste. It’s a definition with implications at the root of the whole debate on abortion.
“My personal view is that it is a human life,” Henderson said.
He reiterated a point that he made in the Council meeting. “We execute criminals who do heinous things, and they get a decent burial, so why not treat a human that’s unborn with the same sort of dignity … I’m not presenting this as a pro-choice or a pro-life issue at all. It’s just the decent thing to do, in my mind, for a dead human.”
Beard argued there’s a biological difference.
“Obviously, there is quite a difference between the tangible medical waste of an early pregnancy loss, or early abortion, and a human, adult human being who has died,” she said. She’s disappointed, she said, at Henderson’s blanket argument, saying it “indicates he has perhaps never been pregnant.”
“This is all about stigmatizing,” Froemming said. “... This is a very difficult decision already. And (the ordinance is) intended to make it as difficult as possible.”
The mayor had apparently heard similar feedback because he brought up that point in an interview, saying it’s not true at all that the city is trying to shame women.
“It’s strictly about fetal remains,” he said.
Behind the argument that it’s a simple case of human remains, Beard said, is the idea that women don't understand the distinctions involved — “that we cannot trust women to decide what is happening with respect, to recognize that there’s a difference between someone who maybe had an abortion at three weeks and disposes of it in a similar way as you would to a heavy period, versus someone who’s had a late-term pregnancy loss.”
Arguing the other side, Theis said, “What they are opposing … is that this baby is being referred to as human. What they are rejecting is the truth of science." She said women are lied to when they get an abortion, told it’s just a clump of cells.
“We trust women," Theis said. "Given the facts, we trust women to make the right decisions for their lives. That is truly empowering.”
Ideology vs. law
The opposing sides seem to be in firm agreement that ideology is driving this dispute: The other side’s ideology.
It’s a national fight that’s come to the streets of Seaford, Froemming said, with opponents of abortion “using this small town and Delaware as a battleground and as an opportunity to advance a national agenda.”
In the Council meeting where the ordinance passed, Seaford attorney Daniel Griffith said of the state attorney general’s opposition, “It seemed to be an ideological position taken but couched in legal terms.”
The letter "clearly made it about ideology and not about the law,” Theis said, taking umbrage at Jennings later calling such laws “medieval.”
“That was ludicrous,” Theis said.
Froemming praised the attorney general’s stance precisely because she saw it as hewing to the law.
“This is ridiculous, that she's having to protect laws that are clearly on the books that elected leaders passed … she’s standing up for the rule of law, that’s her only job.”
“This is actually rooted in the law,” she also said, and the people driven by ideology are the ordinance’s backers. Noting that the anniversary of the Jan. 6 attack on the Capitol is coming up, she said the rioters that day didn’t care about the law and were saying in essence, “we’re gonna run all over you anyway.” And now it's the same approach in Seaford, she said.
It’s true that the law takes a stance on abortion, Beard said, just as it would on murder or even speeding.
“They do enshrine a certain viewpoint in the law,” and “… there is a forum for us to debate the laws. That is in Dover, that is in the legislature, and the attorney general is certainly just enforcing that,” she said.
Seaford City Hall
Constitutional or not?
Griffith, the city attorney, laid out an argument for the Council based on Supreme Court precedent involving a case in Indiana in which the court allowed a similar fetal remains bill to stand, holding that states do have an interest in how fetal remains are disposed of.
Of course, Seaford is not a state, and Attorney General Jennings also argued in her message to the city that the high court had also not addressed whether Indiana’s law is an undue burden on women. Such a burden would not be constitutional under current precedent.
Griffith said if he believed the ordinance would be struck down as unconstitutional, he’d be wasting the city’s time in helping to draft it. “I certainly believe this ordinance would withstand scrutiny and legal challenges,” he told the Council before the vote.
Genshaw echoed that, saying they wouldn’t have taken on the issue if it conflicted with the law. This ordinance’s approach is nothing new, he emphasized, except that a municipality is putting the law into place instead of a state.
Genshaw said when he learned how fetal remains are handled, then learned there was a legal pathway for an ordinance like this, “that’s what drove me to bring it to our Council.”
Beard did not go into detail about Delaware NOW’s legal arguments, as they have not taken any concrete legal steps yet (stay tuned).
“What I will say is that we disagree. The case in Indiana was a very technically specific case,” she said.
She added, “This is about preventing the clinic from providing abortion services."
“At the end of the day, this is just another one of the many tools of trying to shut down the provision of services to women,” Froemming said.
“Our job,” she said, “is to stand up for the women in Delaware to make sure that women’s voices aren’t lost in this, because the laws were informed by women’s experiences over hundreds and hundreds and thousands of years … women are not free if they cannot control their fertility” and their health is impeded, she said.
Jennings left no doubt where the attorney general’s office stands on Seaford’s arguments, tweeting soon after the vote, “Last night, Seaford City Council narrowly passed an anti-choice ordinance despite written notice that they were in flagrant violation of State law, constitutional precedent, and established fundamental rights.”
What the reaction to the ordinance has been
While there’s been savage feedback on the Council’s decision in some corners of local social media, city leaders report mostly positive feedback since the vote.
Henderson said over the past two months, he’s had about an equal number of messages supporting and opposing the measure. Since the vote, he said, the messages have been overwhelmingly positive. (He also noted that almost none of those messages before or after came from Seaford constituents.)
Genshaw said the support has been overwhelming, both from people in Seaford and in Sussex County, although “people who are against it can be so loud.”
Council members who voted no on the ordinance cited as part of their concerns the messages from residents who were opposed to the ordinance.
Froemming said many Delaware NOW members, along with others who took part in Women’s March protests, sent letters and emails sharing their stories and asking to give public comment. But public comment was not allowed at the meeting.
She and others have raised the point multiple times that Seaford has an all-male council passing laws like this one regulating women.
“I was so disappointed that when this was being discussed, there was a focus on this idea that these men have to protect dignity,” Beard said. “And the reality is that we were at the Seaford hearing, and there was no discussion of women’s lived experiences, there was no discussion of the kind of trauma that a miscarriage can cause.”
Genshaw said the city is really focused on the baby’s rights. “I don’t know that that’s a male-female issue as much as a right-wrong issue,” he said, and also stated that he doesn’t do anything with an eye to reelection. He wants to lead the town in a positive direction even if he never wins another election, he said, and be able to walk away holding his head high because he did the right thing.
No matter the public support for or against, Froemming came back to what she sees as the law.
“It’s smoke and mirrors at the end of the day, because the state of Delaware has codified Roe v. Wade,” she said.
Will courts agree? We’re about to find out.