PHOENIX — Gov. Katie Hobbs issued an executive order Friday stripping the state’s 15 elected county attorneys of their authority to prosecute doctors and other medical professionals who perform abortions and give it to the attorney general.

And given Attorney General Kris Mayes’ views on the issue, that could effectively lead to total decriminalization of abortion in Arizona as she has said she won’t bring charges. Hobbs and Mayes are Democrats.

In the order, Hobbs noted that the U.S. Supreme Court, in the Dobbs case last year, overturned Roe v. Wade and its constitutional right of a woman to terminate a pregnancy. That led to legal questions — still playing out before the Arizona Supreme Court — about which state laws can now be applied and enforced.

Hobbs said that “could lead county attorneys across the state to make disparate decisions on whether and how to criminally prosecute the same, or similar, conduct relating to abortion care.’’

“The state has an interest in ensuring that abortions laws are applied equally, consistently, and predictably to all people and in all counties in Arizona,’’ the governor said in her order.

She is directing Mayes to “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 the state for violation of any state law restricting or prohibiting abortion care.’’

Conflict between laws

Hobbs specifically cited a statute that dates back to territorial days that imposes a prison term of between two and five years on anyone who performs an abortion unless it is necessary to save the life of the woman.

That’s crucial because the Arizona Supreme Court is set to decide whether that law, which never was repealed after the U.S. Supreme Court decided Roe in 1973, automatically became enforceable again once the justices voided Roe last year. That was the legal position of Republican Mark Brnovich who was Arizona attorney general at the time.

Mayes has instead taken the position that a law banning abortion after 15 weeks, approved by the Legislature last year before the U.S. Supreme Court’s Dobbs ruling, takes precedence. That is the law being enforced for the moment based on a ruling by the state Court of Appeals. Abortion providers can be prosecuted under that law if they terminate a pregnancy after 15 weeks. Arizona lawmakers previously repealed penalties against women who obtain abortions.

Abortion foes are urging the state’s high court to restore the territorial-era ban. That leaves the question of which law is enforceable in legal limbo.

Hobbs’ order, though, is about more than whether abortions remain legal through 15 weeks.

During her campaign last year, Mayes said she believes the 15-week ban is no more legal than the territorial law. That is based on her argument that, regardless of what the U.S. Supreme Court says, women in Arizona have a right to terminate a pregnancy based on a specific state constitutional provision which says “no person shall be disturbed in his private affairs ... without authority of law.’’

Mayes takes an absolutist view of it, including when it comes to so-called “late-term’’ abortions.

“Late-term abortions are extremely rare and almost always done to save the life or the mother or when the fetus is no longer viable,’’ said Mayes’ press aide Richie Taylor. “The attorney general believes decisions in such matters should be made between the woman, her family and her doctor.”

Mayes refused this year to defend another law, which makes it a crime to perform an abortion if the sole reason the woman is seeking it is because of a genetic abnormality of the fetus. That resulted in Arizona House Speaker Ben Toma, R-Peoria, and Senate President Warren Petersen, R-Gilbert, filing a motion to intervene so they could defend the 2021 law in federal court.

Is the order legal?

The legality of the governor’s order is being questioned.

Hobbs’ press aide Christian Slater cited a statute saying she has the power to 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.’’

But Cochise County Attorney Brian McIntyre said Hobbs is misreading the scope of that authority.

“It says the governor has the power to say ‘enforce this,’ ‘’ to the attorney general, he said. “It doesn’t say the governor has the power to then remove a constitutional officer, the county attorney’s office.”

The phrasing in the state constitution is that county attorneys “shall be the public prosecutor of the county,” McIntyre said.

He said that, whatever people believe about abortion, the governor’s order sets a dangerous — and he contends illegal — precedent, setting the stage for what might happen in the future when there are vastly different people holding the offices of governor and attorney general.

McIntyre, a Republican, said that if the governor doesn’t want people going to prison for performing abortions, she does have other legal remedies.

For example, he said, she could tell the state Board of Executive Clemency that it should recommend that anyone convicted of an abortion offense be given an immediate pardon.

And McIntyre said Mayes could eliminate the possibility of prison sentences by simply deciding her office will not mount a defense any time someone convicted of an abortion-related offense files an appeal.

No prosecutions in Pima County

Pima County Attorney Laura Conover said she supports Hobbs’ action, citing the lack of a final ruling by the Arizona Supreme Court on which abortion law — the near-ban or the 15-week limit — is enforceable.

“We agree with the governor as to both the urgency and severity of this very unique situation,’’ she said in a written statement.

Conover, a Democrat, said that while abortion providers are protected against prosecution in her county, by her office, that may not be true statewide.

“This is an unacceptable equal protection problem and dangerous, especially for our rural communities,’’ she said.

Conover initially sidestepped the question of whether she believes Hobbs’ action is legal. Instead, she said her office “will voluntarily send all criminal referrals to the attorney general in the spirit of fixing this constitutional inequity.’’

But an aide later said Conover now believes the statute cited by Hobbs “appears to convey the power to the governor to issue the executive order. “We respectfully defer to the governor and the attorney general at this time,’’ the statement says.

Maricopa County Attorney Rachel Mitchell had no qualms about analyzing the order.

“The governor’s attempt to undermine the 15 elected county attorneys’ authority is outrageous,’’ she said. Mitchell, a Republican, said her attorneys are reviewing the order “and will take the appropriate next steps.’’

At the Capitol, Toma, the House speaker, who has voted for abortion restrictions, said Hobbs can’t legally do what she did.

“The governor cannot unilaterally divert statutory authority to prosecute criminal cases from Arizona’s 15 counties to the attorney general,’’ Toma said in a written statement.

He said the issue isn’t just gubernatorial power.

“At a minimum, this order shows disrespect and contempt for the judiciary,’’ Toma said, noting that the state Supreme Court is still deciding which laws are in effect in Arizona.

That is not the view of Brittany Fonteno, the president and CEO of Planned Parenthood Arizona.

“This executive order will help ease the fear and uncertainty that swept through Arizona in the year since Roe was overturned, and protect all those seeking and providing necessary health care,’’ she said in a prepared statement.

But Cathi Herrod, executive director of the anti-abortion Center for Arizona Policy, said in a statement Friday that the order is illegal. She cites a provision of state law that says the governor “may require the attorney general to aid a county attorney in the discharge of his duties.’’

“Aid does not mean supplant or replace,’’ Herrod said.

“In her zeal for abortion, Gov. Hobbs has exceeded her authority as governor,’’ she continued. “The law does not allow her to strip county attorneys of their clear authority as granted in various Arizona laws.’’

Out-of-state residents

Hobbs’ order also directs state agencies not to assist in investigations from other states, where abortion restrictions remain, about their own residents seeking abortion care in Arizona. There would be cooperation only if ordered by a court or state or federal law.

Hobbs also said she will decline to extradite anyone from Arizona to a state that seeks to prosecute that person for abortion services that, while illegal in the other state, are not illegal here.

Thousands of abortion rights supporters turned out to protest the overturning of Roe v. Wade, including marching through the streets of downtown for hours. Video by Kelly Presnell / Arizona Daily Star

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Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on Twitter at @azcapmedia or email azcapmedia@gmail.com.