Seaford fetal remains law overturned in court

By Andrew Sharp

The city of Seaford's ordinance requiring burial or cremation for fetal remains from abortion or, in some cases miscarriage, has been overturned by a state court, the Delaware Department of Justice announced on Monday.

The city passed the ordinance last year in response to the opening of a Planned Parenthood facility that offered abortions. It put that ordinance on hold to avoid a lawsuit after strong pushback from the state, but the attorney general's office sued anyway.

The state argued that Seaford did not have the authority to enact the ordinance, since it was preempted by state law. Judge J. Travis Laster of the Delaware Court of Chancery sided with the state, ruling that Seaford is a "junior sovereign" that can't enact law that conflicts directly with state law.

An anonymous donor had offered to pay the city's legal costs if the ordinance were challenged, a move criticized by opponents of the ordinance, who called it dark money. It appears either the city or the donor will have to pay, as the court awarded costs to the state, according to the Department of Justice.

The decision comes on the heels of the U.S. Supreme Court's decision Friday overturning Roe v. Wade and leaving abortion law in the hands of the states. Abortion is legal in Delaware, and the Department of Justice said the Seaford ruling, based on state law, will not be affected by the national decision in Dobbs vs. Jackson Women's Health Organization.