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Judge nixes town mandate to bury or cremate fetal remains

June 29, 2022 GMT

DOVER, Del. (AP) — A Delaware judge on Wednesday struck down a small town’s ordinance mandating burial or cremation of fetal remains.

The ruling by Vice Chancellor J. Travis Laster came in a lawsuit filed by Democratic Attorney General Kathleen Jennings against the southern Delaware town of Seaford. The town council passed the ordinance in December after Planned Parenthood opened a facility in Seaford in September, its first clinic in southern Delaware since a Rehoboth Beach location closed in 2011.

Laster noted that the case did not involve any federal constitutional rights or any Delaware law regarding abortion, and was not affected by recent U.S. Supreme Court rulings on abortion. Instead, he wrote, the state’s argument relied on Delaware’s laws regarding disposal of human remains.

“In Delaware’s governmental hierarchy, the state is the senior sovereign. The city is the junior sovereign. Because the ordinance conflicts with Delaware law, it is preempted,” Laster wrote.

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Laster noted that state law requires an official record of death before human remains can be cremated or interred. An official record of death can be issued for fetal remains only if they result from a miscarriage and either weigh more than 350 grams (12.5 ounces) or otherwise indicate a gestational stage of 20 weeks or more.

Fetal remains that do not meet that criteria are not considered a “dead body” under Delaware law and must be incinerated as “pathological waste.”

“However one might view aborted remains for ethical, moral, or religious purposes, they do not constitute a dead body under Delaware’s statutory regime,” Laster wrote. “Aborted remains therefore cannot be buried or cremated.”

Despite Laster’s explanation that the case had less to do with abortion than with state laws regarding disposal of human remains, Jennings seized on the ruling to attack what she described as “a wave of extremist, draconian laws” unleashed by the U.S. Supreme Court.

Jennings also described Seaford’s ordinance as “a cruel and frankly hateful policy,” having previously labeled it “anti-choice.”

The ordinance made clear that women have the right under state and federal law to get an abortion, while also noting that courts have held that the disposal of fetal remains can be regulated.

Jennings argued that the ordinance would pose a hardship on women by forcing them to pay for burial or cremation, even though a woman could opt not to select either option. In that instance, the abortion facility would be left to decide, at its expense, how and where to dispose of the remains.

“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,” Jennings said when the lawsuit was filed in January.

Meanwhile, Democratic Gov. John Carney on Wednesday signed a bill further broadening access to abortions in Delaware. The bill allows physician assistants, certified nurse practitioners and nurse midwifes to perform abortions before viability. It also includes various legal protections for abortion providers and patients, including out-of-state residents receiving abortions in Delaware. Those provisions include protections from civil actions in other states relating to the termination of a pregnancy, and protecting individuals from extradition to other states for criminal charges related to terminating a pregnancy.