Republican Maricopa County Attorney Rachel Mitchell (pictured above, left) is calling on Democratic Arizona Governor Katie Hobbs to rescind her executive order that strips county attorneys of their authority to prosecute abortion-related crimes.
Last month, Hobbs signed a sweeping executive order to protect anyone involved with a “legally obtained” abortion from prosecution.
The order forbids state agencies from assisting in any criminal investigations without a court order, and prohibits local prosecutors from filing charges relating to abortion. Furthermore, Arizona will not comply with any extradition demands for individuals sought for requesting, providing, or helping in an abortion.
Only Democratic Attorney General Kris Mayes of Arizona has the authority to supervise cases involving abortion.
A 2022 law permits abortions in Arizona during the first 15 weeks of pregnancy. The Arizona Court of Appeals said last year that abortion providers cannot be charged under an 1864 law that criminalizes almost all abortions. Because of Roe v. Wade, that pre-statehood statute has already been prohibited from being applied for many years.
According to Mitchell, Hobbs should not interfere with the discretion of prosecutors in fulfilling their duties as elected officials.
“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. As county attorneys each of us exercises such discretion daily. The governor’s office should not interfere with the discretion of prosecutors in fulfilling their duties as elected officials. However, this is a sweeping attempt to do just that. Whether this was the intended purpose, the result is an unnecessary and unjustified impingement on the duties and obligations of elected county attorneys in Arizona,” Mitchell said.
Mitchell states that this executive order results in the exercise of power not granted to the governor’s office, but it is a significant overreach to suggest that the governor may take away local, elected authorities’ prosecutorial discretion.
“Executive Order 2023-11 sets a dangerous precedent and suggests that any Arizona governor can order the attorney general to assume all duties related to an entire category of criminal prosecution and, by consequence, prohibit local prosecutors from acting,” Mitchell said.
The attorney claims that the executive order violates Arizona Revised Statutes 41-193 (A)(2) and (A)(5), which only allow the governor’s office to order the attorney general to support county prosecutors in specific, ongoing cases and not across the board for entire categories of crimes.
Mitchell urges Hobbs to rescind the executive power reinstating the county attorney’s authority to prosecute abortion-related crimes.
“We ask that you rescind the usurpation of the rightful decisions of elected prosecutors by rescinding Section 1 of Executive Order 2021-11 and Section 2 insofar as it would limit access to criminal history records or crime lab support,” Mitchell said.
She also requests the confirmation that “State Agency,” as used in the executive order does not include any county-level government officers and agencies.
Mitchell asks Hobbs to rescind the executive order by or before Friday .
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Hannah Poling is a lead reporter at The Ohio Star, The Star News Network, and The Arizona Sun Times. Follow Hannah on Twitter @HannahPoling1. Email tips to [email protected]
Photo “Rachel Mitchell” by Rachel Mitchell for Maricopa County Attorney. Photo “Katie Hobbs” by Governor Katie Hobbs. Background Photo “Arizona State Capitol” by Gage Skidmore. CC BY-SA 2.0.
