Gov. Katie Hobbs told 12 county attorneys late Friday she is on legally solid ground in rejecting their request that she rescind her executive order stripping them of their authority to prosecute abortion cases.
And that now leaves it up to the prosecutors what, if anything, they will do next.
In the letter to Maricopa County Attorney Rachel Mitchell, the governor told her Arizona law specifically permits her to designate Attorney General Kris Mayes as the only person who can bring charges against anyone who violates a whole series of existing laws regulating under which conditions abortions can be performed.
More to the point, she told Mitchell — with copies to 11 others who sent her the letter Monday asking she rescind her order — that they, as county officials, have only the authority specifically laid out in statute.
“If you disagree with the wisdom of those laws, I encourage you to engage with lawmakers in the legislative process,” Hobbs said. “Similarly, if you have concerns about how future governors may utilize this statutory authority, such concerns should be addressed in the legislative process.”
But what the letter does not mention is whether Hobbs, presented with such a change in law, actually would sign it.
Friday’s letter, by itself, is no surprise. The governor had said almost immediately on receiving it on Monday that she would not back down.
“I will continue to use my legal authority to protect Arizonans from extremists who want to prosecute women and doctors for their healthcare decisions,” she wrote in a Twitter post.
That, however, simply gave what amounts to a political and philosophical response. Now the governor has detailed her legal response — and what her arguments will be if the county attorneys decide to challenge her in court.
Jeanine L’Ecuyer, spokeswoman to Mitchell, who is spearheading the effort, told Capitol Media Services that the prosecutors, aware of the governor’s public statements, already have been conferring. But she declined to say what action, if any, is next.
At the core the question comes down to how expansive the governor’s power is.
Hobbs cited a section of law which says that the governor can direct the attorney general to “prosecute and defend any proceeding in a state court … in which this state or an officer of this state is a party or has an interest.”
That is not in dispute.
What is is whether that simultaneously strips all 15 locally elected county attorneys of their own right to bring charges when they believe criminal laws have been violated. And the 12 prosecutors that wrote to Hobbs — not including those from Pima, La Paz and Apache counties — contend it does not.
“Since statehood, it has been status quo in Arizona that the duty and discretion to conduct criminal prosecutions for public offenses rests with county attorneys unless a statute specifically provides otherwise,” they told Hobbs, calling her order a “sweeping attempt” to “interfere with the discretion of prosecutors in fulfilling their duties as elected officials.”
They also told the governor her reliance on that section of law is legally misplaced. That law, they said, “only related to existing, individual cases and not whole categories of crimes,” including crimes that have not yet occurred.
“It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” they said.
Wrong, said Hobbs.
“The Legislature has expressly granted this authority,” she said.
The governor also said having Mayes handle all cases prevents “potential disparities in how 15 different county attorneys may interpret and apply abortion law from chilling or restricting access to lawful healthcare.”
One question county prosecutors will now have to decide is whether they could be successful in seeking a declaratory judgment from a court that Hobbs overstepped her authority.
In general, judges do not like ruling on purely hypothetical cases. Instead, they prefer what the lawyers call a “live case or controversy,” where they have actual facts to determine what is and is not legal.
That could mean that adjudicating the issue of the governor’s authority could have to wait until some county attorney decides to charge a medical provider with violating an abortion law and Mayes moves to take the case away from him or her.
Hobbs reminded Mitchell of that fact.
“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,” the governor said.
“And based on recent statements by other county attorney that they have little or no interest in pursuing abortion-related prosecutions, this order may” never have an impact on any county attorney, she added. Hobbs said, “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 the assume all duties related to that case” pursuant to the order and state law.
That could take months — if not longer.
For the moment, the state Court of Appeals has enjoined enforcement of the state’s territorial-era law which outlaws abortions except to save the life of the mother despite arguments by then-Attorney General Mark Brnovich that the decision last year by the U.S. Supreme Court to overturn Roe v. Wade makes that again the law in Arizona.
Instead, the appellate court judges said that a 2022 law banning abortions only after 15 weeks of pregnancy takes precedence. And, for the moment, there is no evidence any abortions of a live fetus are being performed after that date.
There is a separate law that bars doctors from terminating a pregnancy if they know the woman is seeking it because of the gender or race of the baby. Another makes it a crime to perform an abortion if the sole reason is a fetal genetic defect.
The argument is now before the Arizona Supreme Court.
But while there are no pending cases, it would be wrong to say that no local prosecutor has expressed interest in pursuing abortion laws.
In April, Yavapai County Attorney Dennis McGrane told the Supreme Court he wants to intercede in that pending legal fight over whether the territorial-era law or the 15-week ban is enforceable. He said that is important as Mayes, who took over from Brnovich in January, is not defending the older law.
Jacob Warner, an attorney with Alliance Defending Freedom who is representing McGrane, told the justices his client needs to intervene to represent “the interests of all people in his jurisdiction.” And what that means, he said, is to “fully enforce” the territorial-era law.
“This interest sits in grave jeopardy now,” Warner told the court.
The justices have yet to rule on whether he can participate in the case.
Hobbs in her letter took a bit of a conciliatory approach.
“I appreciate the work county attorneys across the state do every day and thank you for your service to Arizonans,” she wrote. “Nothing in the order should impede your ability to do that work, including focusing on reducing violent crime in our neighborhoods and keeping our streets safe.”