Delaware's attorney general sued the city of Seaford in January after the city passed an ordinance in December that would require health care facilities there to either bury or cremate fetal tissue resulting from a miscarriage or abortion.
The state argues that the city's ordinance conflicts with a myriad of state statutes concerning death certificates, burial and cremation permits, solid waste disposal and funeral services. Delaware is seeking a court order that Seaford's ordinance is invalid because it is preempted by state law.
Preemption is the "kernel of the issue" in the Delaware dispute, Chancery Court Vice Chancellor J. Travis Laster said during a hearing on cross-motions for summary judgment in Wilmington Thursday.
"We are analyzing this case under the preemption doctrine. We're not thinking about bigger moral or constitutional questions," the vice chancellor said.
The Seaford ordinance, which the city has stayed pending the court's ruling, is based on a fetal remains law in Indiana that the Supreme Court upheld in 2019 in Box v. Planned Parenthood of Indiana and Kentucky Inc.
The Indiana law requires abortion providers to treat fetal remains like human remains by either burying or cremating them.The Seaford ordinance may be the first attempt to replicate the Indiana law at the municipal level, the state's attorney, Christian Douglas Wright of the Delaware Department of Justice, told the court Thursday.
But unlike Indiana and other states that have passed similar measures, Seaford does not have the authority to exempt itself from state statutes, Wright said.
Under Delaware law, a body cannot be buried or cremated without a permit, and one cannot get a permit for cremation or burial without a death certificate, he explained.
The state will issue a death certificate for a baby that is stillborn, but it does not issue a death certificate for an induced termination of pregnancy, Wright said. The only exception is the case of an induced abortion to remove a fetus that has already died in the womb.
The ordinance "creates a conflict," Wright said. "Because you can't get a death certificate for an intentional termination of pregnancy, you can't bury it or cremate it."
Seaford's attorney, Daniel A. Griffith of Whiteford Taylor Preston LLP, argued that Delaware gives its municipalities broad power to enact legislation for their communities as long as it is not inconsistent with state statutes.
Griffith argued that the ordinance is not inconsistent with state statutes because, under Delaware law, only "dead bodies" require a death certificate for cremation or disposal.
Fetal remains, however, are defined as "pathological waste," which under Delaware law must be buried, cremated or incinerated, he said.
"The definition of cremation says 'human remains,' not 'dead bodies,' so it includes pathological waste," Griffith said, citing Delaware regulations.
The vice chancellor said he would take the matter under advisement.
"It's a difficult issue that warrants thought and a written opinion," he said.
"This case is presented in the very arid realm of preemption," he said, "but there's a deeper backdrop here."
"We're obviously talking about an area where people have very strong feelings."
The vice chancellor did not say when he would rule.
The City of Seaford is represented by Daniel A. Griffith of Whiteford Taylor Preston LLP.
The State of Delaware is represented by Christian Douglas Wright of the Delaware Department of Justice.
The case is Jennings v. City of Seaford, case number 2022-0030, in the Court of Chancery for the State of Delaware.
--Additional reporting by Jimmy Hoover. Editing by Vaqas Asghar.
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