Governor Katie Hobbs told 12 county attorneys late Friday that she had a good legal basis to deny their request to revoke an executive order that strips them of their authority to prosecute abortion cases.

And what the prosecution will do next is up to the prosecution.

In a letter to Maricopa County Attorney Rachel Mitchell, the governor said that Arizona law is the only law that can accuse someone of violating the existing set of laws governing the conditions under which abortions can be performed. He said he was specifically authorized to nominate Attorney General Chris Mays as a person. Executed.

More importantly, she provided Mr. Mitchell with copies of the other 11 people who sent letters Monday seeking the cancellation of the order, saying that as county employees they have only the powers specifically provided for by law. , said.

“If you disagree with the wisdom of these laws, I encourage you to work with lawmakers on the legislative process,” Hobbes said. “Similarly, if there are concerns about how future governors will utilize this statutory power, such concerns should be addressed in the legislative process.”

What is not mentioned in the letter, however, is whether Mr. Hobbes, when presented with such a legal change, would actually sign it.

Friday’s letter itself is not surprising. As soon as the governor received the report on Monday, he said he would not retract it.

“I will continue to use my legal authority to protect Arizonans from extremists who seek to prosecute women and doctors for their medical decisions,” she said in a Twitter post. .

But it merely gave the equivalent of a political and philosophical response. The governor has now detailed her legal response. She also clarified what would happen to her claims if the county attorney decided to challenge her in her court.

Mitchell’s press secretary, Janine Requier, who is spearheading the effort, told the Capitol Media Service that prosecutors were aware of the governor’s official statement and were already in discussions. But she declined to say what she would do next.

The fundamental question is how far the governor’s powers have expanded.

Hobbes provided that the Governor may direct the Attorney General to “prosecute and defend any proceeding in state court in which this State or any officer of this State is a party or has an interest.” Quoted the statutory provisions.

I have no objection to that.

The question is whether this simultaneously disqualifies all 15 locally-elected county attorneys from their right to press charges when they believe they have violated the criminal code. And the 12 prosecutors who wrote to Mr. Hobbes (not including prosecutors in Pima, La Paz, and Apache counties) argue otherwise.

“The current situation in Arizona, since the state system, is that the duty and discretion to prosecute criminal offenses in public service rests with the county attorney, unless the law provides otherwise,” they told Hobbes, telling her that called the order “an exhaustive attempt to sabotage”. Act as an official elected at the discretion of the public prosecutor. ”

They also told the governor that reliance on that provision of the law was legally wrong. The law “relates only to pre-existing individual cases and not to entire categories of crime, including crimes that have not yet occurred,” they said.

“To suggest that the governor may strip prosecutors from local elected officials is a significant overstatement,” they said.

No, said Hobbes.

“Congress has explicitly granted this authority,” she said.

By putting Mays in charge of all cases, the governor also noted that “potential disparities in how 15 different county attorneys interpret and apply abortion laws could limit access to legal health care.” It also said that it would prevent “to atrophy or restrict”.

One of the issues county prosecutors will have to decide going forward is whether they can seek a declaratory judgment from the court for exceeding Mr. Hobbes’ authority.

Judges generally do not like to rule based on purely hypothetical cases. Instead, they prefer what lawyers call “actual litigation or controversy.” There are actual facts to determine what is legal and what is illegal.

That means the county attorney may have to wait until the county attorney decides to accuse the provider of abortion law violations and Mays moves to take up the case before trying the governor’s authority. means that

Hobbs reminded Mitchell of that fact.

“Considering that your office recently admitted that it does not pursue abortion-related public prosecutions, this section of the Order: Any Your office will be affected immediately,” the governor said.

“And based on recent statements by other county attorneys that they have little or no interest in abortion-related prosecutions, this order may never affect any county attorney.” she added. Hobbes said, “If, and only if, you or another county attorney choose to bring a lawsuit in superior court seeking abortion-related prosecution, the Attorney General will make the case pursuant to the order and state law. I will accept all obligations,” he said. .

It could take months, if not more.

At this point, state appeals courts have ruled out states making abortion illegal except to save the mother’s life, despite then-Attorney General Mark Brunovich’s assertion that last year’s U.S. Supreme Court ruling was handed down. Stopped enforcing territorial law. Overturns Roe v. Wade, making it law again in Arizona.

Instead, appeals court judges said a 2022 law banning abortions only after the 15th week of pregnancy would prevail. And so far, there is no evidence that any live fetal abortions have taken place since that date.

Another law prohibits doctors from terminating a pregnancy if the doctor knows that the woman wants the baby because of the sex or race of the baby. The other criminalizes abortion when the only reason is genetic defects in the fetus.

That argument is currently pending in the Arizona Supreme Court.

But while there are no cases pending, it would be wrong to say that the district attorney has no interest in pursuing abortion laws.

Yavapai County Attorney Dennis McGran told the Supreme Court in April that he wanted to intervene in a pending legal battle over whether the territory-era law or the 15-week ban is enforceable. He said this was important because Mays, who replaced Brnovic in January, has not defended the old law.

Liberty Alliance attorney Jacob Warner, representing McGlenn, told the judge that his client needed to step in to represent “the interests of all people in his jurisdiction.” . And that means “fully enforcing” the laws of the territorial era, he said.

“This interest is now in serious jeopardy,” Warner told the court.

Judges have yet to rule on whether he can join the case.

Hobbes took a slightly more conciliatory approach in his letter.

“Thank you county attorneys across the state for their daily work and for their service to the people of Arizona,” she wrote. “Nothing in this order should interfere with its ability to carry out its activities, such as its focus on reducing violent crime in its neighborhoods and keeping its streets safe.”

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