State ex rel. Jennings v. City of Seaford
| Citation | 278 A.3d 1149 |
| Decision Date | 29 June 2022 |
| Docket Number | C.A. No. 2022-0030-JTL |
| Parties | STATE of Delaware, EX REL. Kathleen JENNINGS, Attorney General of the State of Delaware, Plaintiff, v. CITY OF SEAFORD, an incorporated municipality of the State of Delaware, Defendant. |
| Court | Court of Chancery of Delaware |
Christian Douglas Wright & Vanessa L. Kassab, Wilmington, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Attorneys for Plaintiff.
Daniel A. Griffith, WHITEFORD TAYLOR & PRESTON LLC, Wilmington, Attorney for Defendant.
LASTER, V.C.
In December 2021, the City of Seaford enacted an ordinance titled "Ordinance Relative to Abortion." Its central provision mandates that all fetal remains resulting from an abortion or miscarriage be cremated or interred. The requirement applies no matter the gestational stage of the fetal remains. The State of Delaware filed suit, seeking injunctive relief prohibiting the enforcement of the ordinance and a declaratory judgment that the ordinance is invalid.
In a society divided over the issue of abortion, any decision that touches on that topic carries heightened significance, and particularly so after Dobbs v. Jackson Women's Health Organization , 597 U.S. ––––, 142 S.Ct. 2228, 213 L.Ed. 545 (2022). The Dobbs decision overruled Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), which recognized that women have rights to bodily integrity, personal liberty, and self-determination under the United States Constitution, that respecting those rights is necessary to achieve the equality of women and men under the law, and that a woman's right to make decisions about bodily integrity, parenthood, and family therefore must be balanced against any interests that a government might seek to address when regulating abortion. Particularly after Casey , challenges to laws regulating abortion frequently turned on whether the challenged regulation imposed an undue burden on or a substantial obstacle to the ability of women to exercise their federal constitutional rights.
This case does not involve federal constitutional rights. Even before Dobbs , the Supreme Court of the United States had held that a state statute which imposed a cremate-or-inter requirement for fetal remains did not unduly burden the ability of women to exercise their federal constitutional rights. See Box v. Planned Parenthood of Ind. & Ky. , Inc. , ––– U.S. ––––, 139 S. Ct. 1780, 204 L.Ed.2d 78 (2019). Under that controlling precedent, a challenge to the ordinance on federal constitutional grounds could not succeed. The momentous ruling in Dobbs therefore did not affect the course of this case.
Instead of relying on federal constitutional law, the State maintains that the ordinance conflicts with state law, making it invalid under the settled principle that the law of a junior sovereign (the City) cannot conflict with the law of a senior sovereign (the State). The State's argument does not rely on any Delaware law concerning abortion.1 Rather, the State relies on Delaware's overarching statutory scheme for the disposal of human remains.
Delaware's statutory scheme requires an official record of death before human remains can be cremated or interred. Delaware law only authorizes the issuance of an official record of death for fetal remains that both (i) result from a miscarriage and (ii) either weigh more than 350 grams or otherwise indicate a gestational stage of twenty weeks or more. Other fetal remains cannot receive an official record of death. Consequently, under Delaware law, fetal remains resulting from an abortion cannot be cremated or interred. The same is true for fetal remains resulting from a miscarriage that do not satisfy the gestational threshold. Delaware law instead requires that fetal remains falling in these categories be incinerated.
The ordinance conflicts with this statutory scheme in that it requires that all fetal remains resulting from an abortion or miscarriage be cremated or interred. State law does not permit that result.
As the City concedes, a junior sovereign cannot enact a law that conflicts directly with a law established by the senior sovereign. 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. Summary judgment is granted in favor of the State and against the City.
The factual record for purposes of the cross-motions for summary judgment consists of thirty-nine stipulated facts and fifteen exhibits. Dkt. 23 ("Stipulation" or "Stip."). No one contends that there are any disputes of fact that would prevent the issuance of summary judgment. The motion is therefore deemed submitted for decision on the stipulated record. See Ct. Ch. R. 56(h).
Id. The City has claimed the authority granted under the Home Rule Provision. Its charter provides that the City "shall have, and may exercise, all powers which, under the Constitution of the State of Delaware, it would be competent for this Charter specifically to enumerate." Seaford, Del., C. (Charter) § 4(B).
The governing body of the City is the City Council, which consists of the Mayor and five councilmembers. The City Council holds regular meetings twice a month and special meetings when necessary.
During a regular meeting of the City Council on September 28, 2021, the Mayor presented a draft ordinance for its first reading that addressed the disposal of fetal remains following an abortion. Stip. Ex. 2 at 4. The Mayor explained that the draft ordinance was "being proposed in an effort to change the procedure by which fetal remains are disposed of after [a] pregnancy is voluntarily terminated within the City of Seaford." Id. He noted that "the remains of a terminated pregnancy are currently disposed of using medical waste protocols." Id. He explained that the draft ordinance would require that "any remains from a voluntary termination of pregnancy be disposed of via cremation or inter[ ]ment." Id. At the time, the Mayor observed that he did not believe that there were any medical facilities performing abortions in the City. Id. at 5.
The City Council discussed the draft ordinance. One of the councilmembers asked whether the City "had the authority to implement this ordinance without the approval of the State of Delaware." Id. at 4. The City Solicitor correctly observed that "the City is unable to enact any law that conflicts with current Delaware Law." Id. The City Solicitor expressed his view that "[a]s there is no specific Delaware law that requires the woman or facility to choose [cremation or interment] for disposal, the City of Seaford is not in conflict with Delaware law." Id.
On October 12, 2021, the City Council held a regular meeting at which it was scheduled to vote on the draft ordinance. Stip. ¶ 9. Approximately four and a half hours before the meeting, the City received a letter from the Chief Deputy Attorney General for the State of Delaware that questioned whether the City Council had the legal authority to enact the draft ordinance. Id. Ex. 4. The letter asked that the City Council "table this ordinance until such time as [the Delaware Department of Justice] [is] able to assess whether this ordinance is consistent with federal and state law." Id. That same day, the American Civil Liberties Union sent a letter questioning the legality of the draft ordinance. Id. Ex. 5 at 1.
During its meeting on October 12, 2021, the City Council discussed the letters. The City Council voted unanimously to table the draft ordinance until the Mayor and City Solicitor provided additional information to the Delaware Department of Justice.
On October 14, 2021, the City Solicitor sent an email to the Chief Deputy Attorney General outlining the City's position on the legal authority it possessed to enact the draft ordinance. Stip. ¶ 15. Over the ensuing weeks, the City Solicitor discussed the draft ordinance with other attorneys "to get some ideas of how the ordinance could be improved with some language that would explain why the City of Seaford has the authority to [enact the draft ordinance] and to address any concerns that the State may have to address proactively." Id. Ex. 8 at 2.
Based on these discussions, the draft ordinance was expanded to address fetal remains from miscarriages so that both types of fetal remains would be treated identically. Id. The revisions also removed a provision from the draft ordinance that purported to eliminate the requirement that "[a]n operator of a [crematorium] ... secure a death certificate, burial permit, transportation permit, or a cremation authorization form" before cremating or interring fetal remains. Compare id. Ex. 1 at 11, with id. Ex. 6 at 133. A similar provision had appeared in an Indiana statute that the Supreme Court of the United States upheld against a federal constitutional challenge. See Box , ––– U.S. ––––, 139 S. Ct. 1780.
On December 14, 2021, the City Council met to consider the revised version of the...
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