Arizona Gov. Katie Hobbs issues executive order to limit prosecutions related to abortion

Arizona Gov. Katie Hobbs has taken action to limit abortion-related prosecutions as the one-year anniversary approaches of the U.S. Supreme Court decision to overturn Roe v. Wade.

An executive order Hobbs signed June 22 gives state Attorney General Kris Mayes the power to handle any attempted county prosecution under state abortion laws, bans state agencies from assisting investigations for alleged violations in other states and bans extradition of people accused of violating other states' abortion laws.

It also creates a Governor’s Advisory Council on Protecting Reproductive Freedom that would recommend ideas to "expand access to sexual and reproductive freedom health care in Arizona," among other goals.

"I made a promise to Arizonans that I would do everything in my power to protect reproductive freedom, and this Executive Order reflects that promise,” Hobbs, a Democrat, said in a prepared statement. “I will not allow extreme and out of touch politicians to get in the way of the fundamental right Arizonans have to make decisions about their own bodies and futures. I will continue to fight to expand access to safe and legal abortion in any way that I can.”

The Supreme Court ruling on June 24, 2022, in the Dobbs v. Jackson Women's Health Organization initially threw Arizona back to the 1800s, halting abortion services for a time over fear of a pre-statehood law that required mandatory prison for abortion providers. A court later ruled in favor of a newer law that abortions performed by licensed physicians were legal up to 15 weeks of pregnancy, but without exceptions in cases of rape or incest. Still, abortion advocates continue to worry over current and future restrictions in Arizona.

Hobbs' executive order seeks to take command over the uncertainty, "centralizing" authority over intended abortion prosecutions in Arizona and "ensuring differences in interpretation or application of the law by different county attorneys do not chill, deter, or restrict access to lawful abortion care," according to her office's statement.

Under the order, no state agency can share "information, data, or investigative assistance or otherwise use any state resources" without a court order to help another state prosecute or impose sanctions on anyone in a civil or criminal anti-abortion proceeding unless it is also punishable under Arizona law. A state agency could share information, however, if the subject of the investigation requests assistance from Arizona in writing.

In addition, all requests to arrest or extradite people for violations of other states' anti-abortion laws would be declined, unless the request also covered violations of Arizona laws.

Hobbs' order "underscores our shared commitment to proactively defend the fundamental rights of individuals and ensure access to reproductive healthcare in Arizona," Mayes said in a statement. "Together, we will continue to do what the voters of Arizona elected us to do — fight like hell to protect the rights of Arizonans to make their own private medical decisions without interference from extremist politicians and anti-choice groups."

Mayes said before being elected in November that she would refuse to prosecute anyone for having or providing an abortion. But asked following a debate with her Republican opponent last September if she could ignore prosecution of laws that were deemed constitutional by the Arizona Supreme Court, she said that was something she'd have to answer later.

Mayes already has declined to defend Arizona's law banning abortions sought for fetuses with "genetic abnormalities" in a federal lawsuit, which spurred state Senate President Warren Petersen and House Speaker Ben Toma to step in as intervenors.

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Cathi Herrod of the conservative nonprofit Center for Arizona Policy said after hearing of the executive order that she questions whether Hobbs can "strip county attorneys of their ability to do their jobs."

"Laws do grant county attorneys clear enforcement authority," Herrod said. "That research is underway."

She cited a state law that says the governor "may require the attorney general to aid a county attorney in the discharge of his duties," adding that "aid does not mean supplant or replace."

Following Herrod's statement, however, Hobbs' spokesman Christian Slater countered her citation with their own, saying the office was applying a different law to the situation. That one states, "At the direction of the governor or, alternatively, if deemed necessary by the attorney general, prosecute and defend any proceeding in a state court other than the Supreme Court in which this state or an officer of this state is a party or has an interest."

House Speaker Toma, R-Glendale, said he and legislative staff are reviewing the order "to determine its legality."

"At a minimum, this order shows disrespect and contempt for the judiciary," Toma said. "Arizona's abortion laws are still in litigation in light of the Supreme Court's historic Dobbs ruling. The governor cannot unilaterally divert statutory authority to prosecute criminal cases from Arizona's 15 county attorneys to the attorney general."

Maricopa County Attorney calls move 'outrageous'

Abortion factored heavily last year in the race for Maricopa County Attorney, the largest prosecutor's office in the state and one run by a Republican, Rachel Mitchell. Well before the election, Mitchell told news media outlets that given her experience working with sex crimes victims, she would not prosecute anyone who sought an abortion for rape or incest, the 2021 law limiting abortions to 15 weeks notwithstanding. But she left open the possibility that she would prosecute abortion providers who broke Arizona law.

She reiterated that stance as she criticized Hobbs' order.

"As county attorney, I have sworn to uphold the law," she said in a statement released Friday afternoon. "The governor's attempt to undermine the 15 elected county attorneys' authority is outrageous."

Her office reviewing the order and "will take the appropriate next steps," she said, without elaborating what those steps could be.

Richie Taylor, spokesman for Mayes' office, said Mayes was not aware of any attempted prosecutions of abortion-related cases in Arizona, or whether other states have requested assistance for investigations or extraditions.

Meanwhile, Planned Parenthood Arizona's president and CEO, Brittany Fonteno, praised the order.

"We are proud to have worked collaboratively with the Hobbs administration and a coalition of partners in reproductive health, rights, and justice to make this executive order a reality," Fonteno said in a statement. "This executive order will help ease the fear and uncertainty that swept through Arizona in the year since Roe was overturned, and protect all those seeking and providing necessary health care."

In January, the liberal pro-choice group said it had asked Hobbs to issue executive orders that went even further than what Hobbs signed Thursday. The group asked for Hobbs to not only to provide protections for patients and abortion providers from civil actions or criminal actions, but also to provide an education website regarding abortion laws in Arizona, to require the state to provide "reasonable accommodations for pregnant workers," and prohibit state funding for crisis pregnancy centers.

The new advisory council Hobbs is setting up may address, though not directly implement, some of those ideas. Besides studying how to create more access to family planning and reproductive health services, it would address "disparities to improve the health of Arizona communities." The council's members, who will be selected at a future date, would represent "medical, social service, public health and advocacy" interests, reflecting "the diversity of Arizona's communities, including Indigenous, rural and LGBTQ communities."

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This article originally appeared on Arizona Republic: Arizona Gov. Hobbs signs executive order to limit abortion prosecution