After Roe, Delaware permits abortion up to viability with exceptions for life and health, and fetal anomaly without a “reasonable likelihood of the fetus’s sustained survival outside the uterus without extraordinary medical measures.” Delaware has just three abortion centers, but allows abortion through virtual visits. Thankfully, Delaware also has at least one pregnancy center in each of its three counties.
Delaware has the second-smallest legislature in the U.S., and it is dominated by pro-abortion lawmakers in both chambers. Delaware lawmakers repealed the state’s informed consent law in 2017, leaving women without basic information on abortion risks and alternatives. In 2022, Delaware lawmakers sought to permit dispensing of abortion inducing-drugs by Advanced Practice Registered Nurses and PAs.
The state judicial system employs a Missouri-style model, whereby the governor nominates judges from a list compiled by the judicial nominating commission in consultation with a committee of the state bar association, and the nominees are confirmed by the state senate.
Governor John Carney is a pro-abortion Democrat who has been endorsed by Planned Parenthood. His attorney general is suing the town of Seaford to void a city ordinance that provides for dignified disposal for fetal remains. Delaware does not actively inspect abortion facilities, but AUL’s Unsafe project did get limited reports for OSHA violations at one location.
After the 2022 Midterm Elections, Kathy Jennings will serve as Attorney General.
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Delaware Abortion Quick Facts
- Abortion is legal in Delaware.
- Delaware limits abortions after viability (20 weeks gestational age) except in cases of life endangerment, rape or incest.
- Chemical abortion pills are loosely regulated in Delaware.
Delaware’s Pro-Life Laws Across the Spectrum
Americans United for Life advances the human right to life across the spectrum of issues confronting the dignity of the human person. AUL’s comprehensive analysis of Delaware’s state laws on human life span the full spectrum of life issues from abortion, to health and safety protections, to patient informed consent, to conscience rights and bioethics.
Delaware’s Pro-Life Laws Key
- Yes, Delaware has this law and it is enforceable
- Delaware has this law in place, but it is currently not in effect due to litigation
- No, Delaware has no such law in place
- Not Applicable
- To Be Determined
State Constitutional Amendments and Statutes
Americans United for Life covers broad pro-life laws in this section. This includes both state constitutional amendments and state statutes designed to protect preborn human life. FOCA/RHA (or Freedom of Choice Acts/Reproductive Health Acts) are laws designed to enshrine and expand abortion and abortion businesses.
- Constitutional amendment stating no right to abortion
- Constitutional amendment preventing state funding of abortion
- Conditional law prohibiting abortion when Roe is overturned
- Pre-Roe abortion ban that will take effect when Roe is overturned
- FOCA/RHA, codifying an abortion right in state law
Mother-Child Gestational and Procedural Protections
States can protect both mother and child by limiting abortion by gestational age or prohibiting gruesome abortion methods. This category also includes life-saving care requirements for a child born-alive after an abortion, and health and safety requirements for a woman undergoing a chemical abortion.
- Gestational protections by age/week for preborn children
- Basic medical care for infant children born alive during attempted abortions
- Partial-birth (D&X) abortion ban
- Dismemberment (D&E) abortion ban
- Telemedicine abortion ban
- Follow up scheduled with patient for abortion pills complications
Prenatal Non-Discrimination (PRENDA) Protections
Increasingly states are enacting laws to protect unborn babies from eugenic abortions based on gender, disability, or race. Some states provide life-affirming resources for families who receive a diagnosis of a possible genetic anomaly like Down syndrome so they know that they’ll be supported.
- Protection against discrimination based on gender
- Protection against discrimination due to prenatal diagnosis
- Protection against discrimination based on race
- State-provided life-affirming resources for parents and families
Informed Consent Laws
Many states require a woman to give informed consent to an abortion, which holds abortion to a similar standard as other medical procedures. These protections include the disclosure of an abortion procedure’s nature and risks, the performance of an ultrasound to date the pregnancy and allow a woman to meet her unborn child if she chooses, and the time for a woman to reflect on this grave decision.
- Basic informed consent for mothers concerning abortion
- Patient signature or written confirmation of informed consent from provider
- Patient is provided state-sponsored informed consent website/information
- Reflection period (48 hours) protecting a mother’s discernment and choice
- An ultrasound is required to give a mother the opportunity to meet their child
- Information on risks of abortion procedure
- Information on the possibility of abortion pill reversal care
Abortion Reporting in Public Health Data
Reporting requirements ensure the government and public have a comprehensive view of abortion in the state when making important public policy decisions. This data includes basic information on instances of abortion, the gestational age of the aborted unborn child, demographics, procedure type, and complications.
- Basic reporting on instances of abortion
- Abortion reporting includes gestational age data
- Abortion reporting includes demographic information
- Abortion reporting includes procedure type
- Complication reporting
- Anonymized/aggregate data is made available to the public
- Anonymized/aggregate data is submitted to the CDC
Parental Rights and Protection of Minors
States protect a minor considering abortion by involving her parents in her life-changing decision, but also provide guidelines for judicial bypass to parental involvement when it is necessary. Other laws included in this section are safe haven laws which create a safe pathway to give up an infant and prevent child abandonment, and the dissemination of information on perinatal hospice to parents of unborn children with fetal anomalies.
- Parental consent before a minor obtains an abortion
- Parental notice of a minor obtaining an abortion
- Judicial bypass limits
- Mandatory reporting of suspected abuse
- Safe haven protections (72 hours)
- Perinatal hospice resources
Basic Health and Safety Standards
These laws bring abortion businesses up to the health and safety standards of medical facilities. States may limit both chemical and surgical abortion procedures to physicians, require the physician be licensed by the state, and require emergency transfer agreements or admitting privileges for the physician or the facility to protect a patient if she suffers post-abortion complications.
- Established health and safety standards for abortion businesses
- Basic regulatory inspections for abortion businesses
- Only physicians can perform abortions (all methods)
- Physicians required to be licensed in the state
- Emergency transfer/admitting privilege patient protections
- Physician’s license/credentials are disclosed to patients
Legal Recognition of Human Dignity for Preborn Persons
This section covers the ways states recognize the human dignity of unborn children. States increasingly require dignified disposition of fetal remains, whether from abortion or miscarriage. The law may provide for the issuance of a fetal death or stillbirth certificate. States may also protect the dignity of unborn children by prohibiting fetal experimentation and banning the sale or transfer of human fetal remains.
- Dignified disposition of fetal remains required
- Parents may request dignified disposition
- Human fetal death or stillbirth certificate issued to recognize the life of human persons (20 weeks)
- Sale or transfer of human fetal remains prohibited
- Fetal experimentation banned
Fetal Homicide and Wrongful Death/Life
Fetal homicide laws establish criminal penalties for the death of an unborn child. Wrongful death suits provide a civil cause of action for the death of an unborn child. A prohibition on wrongful life/birth suits affirms that no life is “unwanted.”
- Fetal homicide criminalization
- Fetal homicide law in place from the moment of conception
- Wrongful death suits
- Prohibition on wrongful life/birth suits
Assisted Suicide and Patient Care
These laws protect end-of-life patients from physician-assisted suicide, a practice that exploits vulnerable patients, has little government oversight, and undermines modern medicine. The Life-Sustaining Care Act ensures healthcare professionals may not override a minor patient or her surrogate’s decision to obtain or continue life-sustaining care. States with patient nondiscrimination acts protect patients from age or disability discrimination.
- Assisted suicide prohibition
- Life-sustaining care act
- Patient non-discrimination on the basis of age or disability
Bioethics, Human Cloning, and Embryo Research
As medical technology evolves, states increasingly enact pro-life bioethics policies to reaffirm human dignity and ban cloning. These laws also require ethical medical practices, ban destructive embryo research, and regulate assisted reproductive technology.
- Bans human cloning
- Bans taxpayer funding for human cloning
- Bans destructive embryo research
- Encourages ethical alternatives to embryo research
- Requires informed consent for assisted reproductive technologies
- Regulates egg harvesting
Healthcare Freedom of Conscience
These laws protect the freedom of conscience of healthcare professionals, institutions, and pharmacists against forced participation in assisted suicide and abortion. States also safeguard the conscience rights of healthcare professionals and institutions against unethical medical research.
- Individuals protected against abortion participation
- Public/Private institutions protected against abortion participation
- Pharmacists protected against abortion participation
- Individuals protected against participation in unethical research
- Private/public institutions protected against participation in unethical research
- Individuals protected against participation in assisted suicide
- Private/public institutions protected against participation in assisted suicide
- Pharmacists protected against participation in assisted suicide
Abortion Inspection Initiative
Delaware lacks a regulatory framework for inspecting abortion businesses, although the state does have the authority under 16 Del. Code, § 122(3)y to inspect any healthcare facil- ity for unsafe and unsanitary conditions upon the occurrence of any adverse event. AUL sub- mitted a public records request to the Delaware Department of Health and Social Services under the Delaware Freedom of Information Act, Del. Code § 100001 et seq. In response, the department told AUL legal staff that they “do not license abortion clinics.” Though the facilities may be inspected in relation to a complaint, the reports that result from those complaints are not considered public records under the Delaware Freedom of Information Act because they are “investigatory files compiled for civil or criminal law-enforcement purposes.” Even after the investigation is closed, the complaints and the file must remain confidential. News-Journal Co. v. Billingsley, No. 5774, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (“[t]his right of privacy would be lost if the file ceases to be confidential as soon as the threat of a[n]…enforcement proceeding disappears.”). Thus, in the name of patient privacy, patients have no way to know how dirty and dangerous their chosen abortion facility is. We did how- ever receive a federal inspection report from the federal Occupational Safety and Health Administration (OSHA), which showed a blatant disregard by Planned Parenthood of Delaware for sanitary and other medical standards, including the competency of staff. Two former Planned Parenthood nurses have been publicly complaining about the “meat-market- style, assembly-line abortions” they witnessed at Planned Parenthood’s Delaware clinic, and about lax regulation and a lack of government oversight of abortion businesses in Delaware. After months of going back and forth with the Delaware Department of Health and Social Services, we finally received 2 state inspections that were completed in 2013 and 2014. The 2013 inspection report cited numerous “unsafe and unsanitary” conditions, as well as over one-hundred expired supplies.
NUMBER OF REPORTS: 3
DATE RANGE: 2009–2014