A dozen county attorneys are pushing back against Gov. Katie Hobbs’ recent move to prevent the criminalization of abortion care.
At the same time, GOP lawmakers are voicing their outrage over that order and another one that bans state funding and promotion of so-called “conversion therapy” for LGBTQ Arizonans.
Last month, Hobbs issued a flurry of executive orders that advanced promises she made on the campaign trail to protect abortion access and defend LGBTQ Arizonans. The orders were met with immediate ire from Republicans across the state, including county attorneys who say their prosecutorial discretion is being violated.
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Abortion
On June 22, days away from the one-year anniversary of the Dobbs ruling that rescinded the constitutional right to a abortion, Hobbs signed an executive order that centralized all authority to prosecute violations of Arizona abortion law in the state attorney general’s office. That office is held by Democrat Kris Mayes, a staunch reproductive rights advocate who has vowed not to punish any doctors or medical professionals for performing an abortion in Arizona.
Arizona law currently limits abortions to 15 weeks, and doctors who violate the law face a class 6 felony and revoked license for any procedure performed after the limit without the woman’s life being in danger. But a near-total ban from 1864 that carries with it a 2- to 5-year prison sentence is still on the books and facing an ongoing legal effort from anti-abortion groups to reinstate it.
Shortly after signing the order, Hobbs fielded blowback from furious Republican lawmakers, and on Monday, 12 of the state’s 15 county attorneys joined in the criticism.
“The governor’s office should not interfere with the discretion of prosecutors in fulfilling their duties as elected officials,” Republican Maricopa County Attorney Rachel Mitchell wrote in a letter sent to the Governor’s Office that was signed by 11 other county attorneys.
Only three county attorneys didn’t add their signature to the letter: Apache County Attorney Michael B. Whiting, La Paz County Attorney Tony Rogers and Pima County Attorney Laura Conover, who voiced ardent support of the executive order when it was first announced.
A key concern for abortion advocates is the danger of prosecutorial discretion based on party identification. That concern was also present in Hobbs’ executive order, which she billed as a way to ensure “uniformity” across the state. At least one county attorney, Yavapai County’s Dennis McGrane, has advocated for the 1864 law, and Mitchell herself has taken inconsistent stances on how to prosecute abortion law violations.
The legal reasoning underpinning the order relies on state laws that give the governor the power to direct the state attorney general to assist county attorneys in carrying out their duties and gives the former supervisory power over the latter — but neither law eliminates the role of county attorneys entirely.
Mitchell, in her response, pointed out that flaw and called on Hobbs to rescind the order. She called the action an “unnecessary and unjustified impingement” on the duties of the elected officials and warned that it would set a dangerous precedent for future governors to strip away the power of county attorneys in any area of criminal law they chose.
But Christian Slater, a spokesman for Hobbs, dismissed the request on Twitter as a nonstarter.
“We will not rescind this order,” he wrote. “Governor Hobbs will continue to use her lawful executive authority to put sanity over chaos and protect everyday Arizonans from extremists who are threatening to prosecute women and doctors over reproductive healthcare.”
Conversion therapy
On June 27, Hobbs signed an order that prohibited any federal or state funds from going towards conversion therapy and directed state agencies to develop policies to keep Arizona youth safe from the harmful pseudoscience that has been denounced by several major medical associations. More than 20 states ban the practice entirely, but Arizona is not one of them, despite recent legislative attempts to do so.
The move elicited outrage from anti-LGBTQ organizations, which accused Hobbs of illegally circumventing the legislative process. On Tuesday, House Speaker Ben Toma backed that argument, calling the order unconstitutional in a letter sent to Hobbs’ office in which he urged her to rescind it lest she face lawsuits.
Toma, a Republican from Peoria, noted that previous court rulings have determined that the Governor’s Office is responsible for carrying out laws but doesn’t have the power to create them. Restrictions on conversion therapy, he said, are best carried out through legislative avenues.
“Although other states have enacted laws banning conversion therapy, those states have made that policy choice through the legislative process. Your Executive Order is an improper exercise of your authority,” he wrote.
It’s unclear, however, if that argument can be applied to Hobbs’ order, which doesn’t ban conversion therapy from happening in the state. Instead, it prevents organizations that provide such treatment — which has been discredited and is intended to change the sexual orientation, gender identity, or gender expression of LGBT people — from receiving any public funding. At least one other governor, Pennsylvania’s Tom Wolf, issued a similar order in 2022 that has yet to see any legal challenges.
The extent of the Arizona governor’s executive power has long been muddled, with no existing state law that precisely defines it. The legality of controversial orders has been clarified through litigation, as in 2014 when an executive order from Republican Gov. Jan Brewer, which attempted to circumvent the Obama-era Deferred Action for Childhood Arrivals policy by declaring they had no legal status in Arizona and couldn’t receive driver’s licenses, was challenged and later blocked.
Toma also warned that the order is likely to violate the state’s Parents’ Bill of Rights, a set of laws that have often been weaponized by Arizona Republicans against LGBTQ youth via proposals that seek to ban preferred pronoun use in schools or learning materials and books with LGBTQ themes.
“The far-reaching mandates of your Executive Order also threaten to violate the Parents’ Bill of Rights, and Arizonans’ constitutional rights, including patients’ right to freely speak with their therapists,” Toma wrote.
But that argument ignores that the order doesn’t prohibit parents from seeking out conversion therapy for their children and instead only stops any public funding from bolstering or promoting the therapy and instructs state agencies to develop policies to protect Arizona youth from it.
In much the same way that he dismissed Mitchell’s letter, Slater rejected Toma’s request to withdraw Hobbs’ executive order.
“Conversion therapy is a discredited and dangerous practice,” he told the Mirror. “We will not rescind this order. Governor Hobbs will continue to use her lawful executive authority to put sanity over chaos and protect everyday Arizonans from extremists in the legislature who are threatening their rights and freedoms.”
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