Arizona Gov. Katie Hobbs refuses to rescind executive order shielding abortion prosecutions

PHOENIX — Arizona Gov. Katie Hobbs is standing by her executive order which prevents county attorneys from prosecuting abortion-related cases in the state.

In a letter sent to Maricopa County Attorney Rachell Mitchell Friday, Hobbs said she issued the order in an effort to “provide consistency—and assurance to patients, providers, and the people of Arizona—on a critical issue of personal freedom and well-being.”

“The order was not motivated by any desire to interfere with the discretion of prosecutors in fulfilling their duties. Instead, it was a lawful exercise of gubernatorial discretion to ensure equal protection and equal access to reproductive healthcare statewide,” Gov. Hobbs said in the letter.

Last week, 12 elected county attorneys sent a letter to Hobbs calling for her to rescind Section 1 and portions of Section 2 of the executive order.

Here’s what Hobbs wrote in response:

First, you request that I rescind Section 1 of the Order, which reads, in part: “To the extent permissible under Arizona law, the Attorney General shall assume all duties with regard to any criminal prosecution of a medical provider or other entity or individual that is pending or brought in the future by the county attorney of any county in this State for violation of any State law restricting or prohibiting abortion care.” I will not rescind this Order.

Given your recent admission that your office does not have any open abortion-related prosecutions,’ this section of the Order does not have any immediate effect on your office. And based on recent statements by other county attorneys that they have little or no interest in pursuing abortion-related prosecutions,² this Order may never have any effect on any county attorney. If—and only if—you or another county attorney chooses to initiate a case in superior court to pursue an abortion-related prosecution would the Attorney General then assume all duties related to that case pursuant to the Order and A.R.S.

Contrary to your claim that this type of authority is “not vested in the Governor’s Office,” the legislature has expressly granted this authority in A.R.S. 41-193(A)(2).^[1] County officials have only the authority prescribed and as limited by statute. If you disagree with the wisdom of these laws, I encourage you to engage with lawmakers in the legislative process. Similarly, if you have concerns about how future Governors may utilize this statutory authority, such concerns should be addressed in the legislative process.

Second, you request that I rescind “Section 2 insofar as it would limit access to criminal history records or crime lab support,” but provide no factual context or legal basis for this request. To the extent you are concerned about any limitation on the counties’ access, I can assure you that the provision—as expressly stated in the Order—only restricts investigative assistance for “an investigation or proceeding initiated in or by another state” for conduct “that would not be punishable under Arizona law.” I decline this request.

Third, you request confirmation that the term “State Agency” as used in the Order does not include county-level government officers and agencies. Your understanding is correct.

[1] See also Smith v. Superior Ct. In & For Cochise Cnty., 101 Ariz. 559, 560 (1967) (“The statutes [] make it clear that the primary responsibility for prosecuting criminal actions at the trial court level rests with the county attorney and that the Attorney General can be Directed to take over these duties only upon specific action taken by the Governor.”

Gov. Hobbs went on to say nothing in the order should impede attorneys from doing their job and that it was not motivated by any desire to “interfere with discretion of prosecutors in fulfilling their duties.”

“Instead, it was a lawful exercise of gubernatorial discretion to ensure equal protection and equal access to reproductive healthcare statewide—in a unique time in history, on a uniquely critical issue,” Hobbs said.

“I hope you can appreciate the important state interests in preventing potential disparities in how 15 different county attorneys may interpret and apply abortion laws from chilling or restricting access to lawful healthcare that affirm Arizonans’ health and well-being, individual rights and reproductive freedom.”