Gov. Hobbs' executive order gives Arizona AG authority over abortion-related prosecutions

Arizona Gov. Katie Hobbs on Friday signed a sweeping executive order to protect anyone involved with a legally obtained abortion from prosecution.

"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," the Democratic governor said in a statement. "I will continue to fight to expand access to safe and legal abortion in any way that I can."

Hobbs’ action comes at the one-year anniversary of the U.S. Supreme Court’s overturning of Roe v. Wade, a ruling that previously allowed for legalized abortion across the U.S.

Here's what you should know about the new executive order.

What does the executive order do?

The order does the following:

  • The state's Attorney General will, to the extent permissible under Arizona law, 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 including, without limitation, ARS 13-3603 and provisions in Title 36, Chapter 23."
  • Bans state agencies from providing "information, data, or investigative assistance or otherwise use any State resources" to further an investigation or proceeding initiated in or by another state that "seeks to impose criminal or civil liability or professional sanction" on a person or entity for providing, assisting, seeking or obtaining reproductive healthcare that would otherwise not be punishable under Arizona law.
  • Requiring the state to decline "any requests from tne executive authority of another state for the arrest, surrender, or extradition of any person charged with a criminal violation of a law where the alleged violation relates to the provision of, assistance with, securing of, or receipt of reproductive healthcare," to the extent permissible under Arizona and Federal law, unless the acts are also punishable under Arizona law.
  • Establishes a Governor's Advisory Council on Protecting Reproductive freedom to "make recommendations that expand access to sexual and reproductive healthcare in Arizona," with a consideration remit that includes, but not limited to, "expanding access to family planning and reproductive health resources, analyzing the existing regulartory and enforcement framework to suggest improvements, and addressing disparities to improve the health of Arizona's communities."

If not repealed, replaced or rescinded, the order will be reviewed no later than June 24, 2024.

Reproductive freedom has been a focus for Hobbs in recent days. On Thursday, she announced her support for state legislation codifying access to contraception. A Democratic lawmaker will introduce it in January. But the bill is a long shot in a Republican-controlled state Legislature.

What is the current state of abortion in Arizona?

Abortions are currently allowed in Arizona in the first 15 weeks of pregnancy, under a 2022 law.

Last year, the Arizona Court of Appeals ruled that abortion doctors cannot be prosecuted under a law dating back to 1864 that criminalizes nearly all abortions. That pre-statehood law was already barred from being enforced for decades because of Roe v. Wade.

Only Arizona Attorney General Kris Mayes, a Democrat, will be able to oversee abortion-related prosecutions.

What are people saying about the executive order?

Medical experts

Dr, DeShawn Taylor, an OB/GYN who is the owner of Desert Star Family Planning, said it's a win.

"Having a governor take action on promises that was made to us to gain her vote is so important for us, who are on the ground fighting to help people have meaningful access to abortion care," Dr. Taylor said. "The fear of prosecution, whether it's meaningful or not, has a chilling effect on providers, so this extra protection is extremely important for us to be able to continue to show up in the best way that we can, to make sure that we are providing services that our communities need."

Republican Party politicians

State Sen. Jake Hoffman said he expects legal issues with the executive order.

"I believe that we will see at least one county attorney, if not multiple county attorneys from both parties, challenge this executive order for its plainly unconstitutional grounds," said State Sen. Hoffman.

State Sen. Hoffman represents the state's 15th Legislative District, which covers a portion of the far East Valley, as well as a portion of northeastern Pinal County. He called the executive order more of a political stunt.

"Attempting to strip duly elected county officials of their statutory responsibility, it just won't hold up in court," said State Sen. Hoffman. "No matter what they think they are trying to accomplish, when this gets challenged - and it will certainly get challenged - it's going to fall flat on its face."

State Sen. T.J. Shope also spoke out against the executive order.

"Those county attorneys, under state statue and under their constitution authority, have the ability to go ahead and prosecute crime and things like that, and not to be usurped by not a law, not a law, but by the stroke of a pen by the governor, and that’s not really the way that our democratic republic functions, where one person has that much authority. That’s why there is a legislature to go ahead, and be a balance to that," said State Sen. Shope. He represents the state's 16th Legislative District, which covers portions of Maricopa, Pima, and Pinal Counties.

Just days after the order was signed, Republicans in the Arizona State Senate sent a letter to Gov. Hobbs, where they question the legality of the executive order, and allege that Gov. Hobbs' move was beyond her authority, and unconstitutional.

State Sen. Hoffman, along with State Sens. T.J. Shope and Sine Kerr, sent a letter to Gov. Hobbs requesting an immediate meeting to address the orders. State Sen. Kerr represents the state's 25th Legislative District, which covers a portion of Maricopa and Yuma Counties. 

In addition, State Sen. Hoffman cancelled a scheduled meeting for the Senate Committee on Director Nominations.

Gov. Hobbs

In response, Gov. Hobbs said the letter is a distraction from the director nomination committee not confirming nominees.

"This is just a distraction from the fact that they haven’t done their job to promptly confirm nominees," said Gov. Hobbs. "At the rate they’re going, they are not even going to be done before the end of my first term, and now they are halting it all together. So I think this is just a distraction from the circus they have created when it comes to confirmations."

The Associated Press (AP) contributed to this report.