Knocked Up = Locked Up in Iraq?

Interesting tidbit from Stars and Stripes, here, on the latest prohibition added to (presumably) MND-N, General Order No. 1:

The Army general commanding U.S. forces in northern Iraq has added pregnancy to the list of prohibitions for personnel under his command.

The policy, which went into effect Nov. 4, makes it possible to face punishment, including a court-martial and jail time, for becoming pregnant or impregnating a servicemember, according to the wording of the policy and confirmations from Army officials.

. . . According to the order, it is “applicable to all United States military personnel, and to all civilians, serving with, employed by, or accompanying” the military in northern Iraq, with few exceptions.

Someone would violate the policy by “becoming pregnant, or impregnating a soldier, while assigned to the Task Force Marne (Area of Operations), resulting in the redeployment of the pregnant soldier,” according to the order.

The policy also applies to married couples who are at war together, Army spokesman Maj. Lee Peters told Stars and Stripes in an e-mail message. Both the husband and wife could face punishment under the policy.

Gene Fidell has some interesting commentary at the end of the story as well.  The civilian personnel accompanying the force angle is particularly interesting, in light of seemingly different standards of conduct for these personnel.

70 Responses to “Knocked Up = Locked Up in Iraq?”

  1. Anonymous says:

    It’s essentially a “no unprotected sex” order. Interesting.

  2. Anonymous says:

    Well, considering there is no 100 percent perfect birth control, one would appear to need to abstain completely, even as a married couple.

    Is this really THAT big of a problem? Seriously? I mean, aren’t most of the folks purposefully getting pregnant, doing so before deployment? (Without penalty I might add)

  3. Anonymous says:

    Is their a self-reporting requirement for a deployed female to inform her chain of command that she is pregnant?

  4. Some Army Guy says:

    There’s an urban myth floating around the Army JAG Corps that OTJAG AdLaw has opined that no-sex orders (as part of GO #1) are illegal orders. Of course, since what OTJAG AdLaw says never gets filtered down to the lawyers doing the work on the ground, I don’t know if that’s true.

    Of course, that’s distinguishable from this since pregnancy does have an effect on readiness whereas consensual sex only does if it results in a pregnancy, but…

  5. No Man says:

    Is their a self-reporting requirement for a deployed female to inform her chain of command that she is pregnant?

    Great comment. Doesn’t exactly further the ability to provide pre-natal care and the safety of the soldier if self reporting makes you criminally liable. So what does the pregnant soldier, sailor, etc do? Go see your local defense shop is probably the right answer now.

  6. Cossio says:

    Anonymous: Is this really THAT big of a problem? Seriously? I mean, aren’t most of the folks purposefully getting pregnant, doing so before deployment? (Without penalty I might add)

    Yes anon, they do.

    No Man: Great comment. Doesn’t exactly further the ability to provide pre-natal care and the safety of the soldier if self reporting makes you criminally liable. So what does the pregnant soldier, sailor, etc do? Go see your local defense shop is probably the right answer now.

    They need to stop having sex period. The women are not there for moral. Often times they are married. This is a big problem, this order is 8 years overdue.

    While they are at it they should extend this to Naval Ships at sea. The Navy ships have become floating brothels and the amount of women who are not mission ready because of pregnancy is staggering. They are there to fight, not screw around.

    The stories I have of this kind of behavior can fill a book, it is detestable. Most of you ex-enlisted/soldier types know what I mean when I say “Moral Pallet”, “Walking Matress”, etc.

  7. Late Bloomer says:

    I am in favor of promoting abstinence amongst deployed personnel, but I’m not sure this is the right medicine. Aren’t there some foreseeable Serianne issues here?

  8. John O'Connor says:

    This order is blatantly lawful.

  9. Anonymous says:

    Sexual intercourse in theater without a resulting pregnancy is blatantly an attempt to violate this GO 1.

  10. Jack O'Connell says:

    John O’Connor is blatantly a badass…

  11. Money Shot says:

    Due to my large C&B and magnetic attraction factor, I would violate this directive merely be landing at BIAP…

  12. John O'Connor says:

    Money Shot, perhaps you’d have an impossibility defense.

    I think whoever drafted this didn’t do anybody any favors by (judging from the quoted language) having criminality depend on whether the military decides to re-deploy the pregnant soldier. That gives the Executive some degree of say in deciding whether to nudge an impregnantion from legal to illegal after the fact. That’s a vulnerability, though I suspect the directive is still constitutional/lawful.

    But they could have made it cleaner by making impregnation the last act necessary to create criminality.

  13. CPT Rob M says:

    This problem does occur; I’m not sure how widespread it would be, although there’s probably statistics on it somewhere. We had an experience w/ one of our attached females getting pregnant midway through the deployment (even though we were an infantry battalion and thus could not have any females on the MTOE, we had some female medics and other personnel attached and they were apparently under our commander’s UCMJ authority). The command sent her home, and wanted to pursue punitive action, likely for the same reasons this order was issued- it created a hole in the unit. As I understand it, after consultation with the lawyers, the brass decided that they couldn’t punish her because it would constitute discriminatory treatment (since they didn’t know who the man was, they couldn’t punish them both equally). I don’t know if that was correct legal reasoning, but it made logical sense to me.

    What’s interesting is that neither the 2009 version of MNC-I GO-1 nor the 2006 version of CENTCOM GO-1B prohibit having sex (the MNC-I order has a prohibition against cohabitation and “spending the night,” and sex with anyone “not members of coalition forces,” implying that sex with members of coalition forces is ok (apparently as long as you don’t spend the night).

    I’m sure the command’s SJA has signed off on this order, and I believe that it is facially lawful. But I wonder if there could be an as-applied equal protection problem with this order, since identifying the responsible male may not always be possible. I can see a lot of advocacy groups pouncing on this as sexual discrimination.

    Even thought the order covers those who become pregnant and those who impregnate another, if the father cannot be identified, can the woman still be punished alone? Can the woman be compelled to name the father (if known)? Will there be orders in-theater for paternity tests? It’s possible that enforcing this order may cause more disruption than the problem it is intended to curtail.

    All that’s needed will be one photogenic 20 year old supply clerk who is court martialed for getting pregnant, while her partner, a silver star-wearing, fire-breathing, SOCOM-bound 26 year old staff sergeant gets at most a slap on the wrist so as not to ruin his career, and it will become national news when a hundred women’s rights groups take up the cause, followed by women in Congress, etc. This is not to say that an order, once issued, should not be obeyed nor its violation go unpunished. But reducing the number of pregnancies that occur in theater may not be worth the headache.

    As to whether or not troops in theater “should” be having sex, it’s going to happen. Teenagers with lots of down time and not much to do are going to do what they always do. If they’re married to other people, we already have rules for that. If a particular relationship is detrimental to good order and discipline, we have rules that can deal with that too. But a blanket prohibition of sex would be as ineffective as the already-existing blanket prohibition of pornography. I think it’s the price we pay for a gender-integrated force (sex is the price we pay; pornography would occur either way).

    Anon 1959- I’m not sure sexual intercourse is an attempt to violate the order, especially if any contraceptive is used. Article 80 is a lesser included offense of Article 92, but an attempt requires “specific intent” to commit the principal offense. Unless they’re having sex intending to get pregnant, I don’t think it would satisfy the intent element.

  14. Anonymous says:

    Well, you can have unprotected sex without a specific intent to get pregnant. You can use the withdrawal or rhythm method for example. Two methods that have very and somewhat poor success rates respectively but are acknowledged birth control methods.

  15. Cossio says:

    CPT Rob M: Teenagers with lots of down time and not much to do are going to do what they always do.

    Teenagers also do drugs and get into fights, so maybe we should make that legal while deployed as well, after all “Boys will be Boys”.

    I hate to pump your theory full of holes but the vast majority of fooling around is being done by married people over the age of 21. I’m sure anyone deployed with a unit has stories of Officers and NCO’s doing this more than a grunt private.

  16. No sex in the Champagne Room says:

    Better practice is to have a no sexual activity order. This no pregnancy order is ridiculous becuase it allows folks to have sexual relations, but punishes what can occur when DNA is exchanged (what if the condom breaks through no fault of either party? Are the conjugal partners still guilty?). The Army apparently believes blanket no sex orders to be unlawful and CENTCOM GO 1B and MNC-I GO 1 do not preclude sex between servicemembers. It is up to local commanders to regulate that conduct. No sex orders have a valid military purpose in an operational environment to prevent fraternization, disease, distractions, and – yes – pregnancy and have been upheld aboard ship. The Army has thought themselves into circles on this one.

  17. CPT Rob M says:

    Cossio- drug use and assault are crimes everywhere, military and civilian alike. We’re talking about criminalizing an ordinarily legal type of conduct solely for deployed troops within one division’s AOR. I didn’t say that it shouldn’t be done. There is often a good reason to do so, i.e. rules prohibiting alcohol on deployment. What I said was that, whether or not there is a good reason (what I meant by “As to whether or not troops in theater ’should’ be having sex…”), I do not believe that a no-sex order would be effective.

    You’re right that it’s not exclusive to young troops (and may be, as you say, mostly officers and NCOs), but that doesn’t change anything. My point was that people who want to have sex are going to have sex, whether there is an order in place or not.

    I agree with those who have said that a blanket no-sex order would be better targeted to address the various problems mentioned, including pregnancy, and such orders can be lawful. They’re also probably easier for local commanders to enforce evenhandedly, and less likely to be subject to an as-applied equal protection challenge. But although such an order may have some punitive effect, I don’t think it would have much of a deterrent effect (maybe cause those involved to be more discrete). I suspect that such orders don’t actually decrease instances of sexual conduct; those involved just take their chances that they’ll be caught (I would imagine that most transgressions go undiscovered and thus unpunished, but I’ve never been on a ship- perhaps it is harder to be discrete on a ship). I’ll yield to those with more direct experience in this area; if there is concrete evidence of such orders’ effectiveness at preventing, not just punishing, sexual conduct, then I’ll stand corrected.

    NSCR- I like your hypothetical uninentional pregnancy. Ironically Article 92 expressly says that there is no mens rea element for violation of a general order; if you unknowingly, unwillingly, or unintentionally violate the general order you can still be punished. But intent is an element of the attempt article. So if you have sex somewhere in northern Iraq specifically intending to get pregnant and you are unsuccessful, that could be an attempted violation of the order. If you have sex not intending to get pregnant, use multiple redundant systems to prevent it, but it happens anyways, you can be punished for violating the order.

    Also, if anyone (esp. the practicing attorneys on this site) has comments on my equal protection theory from my original post, please share. I’m really curious as to whether an order that, as applied, will probably punish mostly females can withstand an EP challenge.

  18. Anonymous says:

    Somebody needs to re-look the wording of this GO 1. Simple fix is to simply make a no-sex order. This thing is ripe for a lot of unwanted and unnecessary media attention.

  19. Cossio says:

    CPT Rob M: Cossio- drug use and assault are crimes everywhere, military and civilian alike. We’re talking about criminalizing an ordinarily legal type of conduct solely for deployed troops within one division’s AOR. I didn’t say that it shouldn’t be done. There is often a good reason to do so, i.e. rules prohibiting alcohol on deployment. What I said was that, whether or not there is a good reason (what I meant by “As to whether or not troops in theater ’should’ be having sex…”), I do not believe that a no-sex order would be effective.

    Druge use is not normally a crime in the civilian world CPT. Rob, drug possesion is.

    I’m ribbing you of course, you can’t blame me for having a little fun, after being picked on so much, it’s good to get someone in a word-trap other than myself.

    I see your point and agree with you. My disagreement was with your use of teenagers. The correct wording would have been; “Men and Women with a lot of down time and not much to do are going to do what they always do.”

  20. Anonymous says:

    Wow, all those folks with prison sentences for drug USE in the US need to talk to you, clearly they aren’t really supposed to be there.

  21. Anonymous says:

    I suppose the order would also encourage abortion, since any potential violation could be cured by an early termination, thereby mooting the necessity of a re-deployment.

    Who knew the Armed Services were so progressive? Or, perhaps they are simply re-affirming their allegiance to
    the “culture of death”.

  22. Anonymous says:

    Amen. Perhaps the Archdiocese of the Military should deny MG Cuculo communion, should he dare to present himself for the same.

  23. CPT Rob M says:

    Anon 1534- as a friend of mine just pointed out, aid stations and TMCs on FOBs do not normally have abortion clinics. This would not just encourage abortions, but “field expedient” abortions in tents and conexes with coat hangers, which would create its own medical and readiness issues (and Article 119a issues if has any assistance).

  24. Anonymous says:

    CPT Rob:

    I’m not aware of any generally applicable prohibition against “field expedient” remedies to the new order. And, Article 119 by its own terms doesn’t apply against the mother of the child.

    Expose yourself to a court-martial, or kill the unborn child within you. It’s an order.

  25. Cossio says:

    What is clear Anon 1330 is you have no idea what you are talking about, your comments warrant no further attention.

    You anons are twisting facts, the order is prohibiting pregnancy, an abortion does not nullify that a pregancy had occured no matter how you skew it.

    Speaking of abortions, here is a cover up story from the Wife of an OSI agent who may have had an abortion after an affair and made up a story of kidnapping:

    http://www.militarycorruption.com/metzger16.htm

    The PC brass won’t dare touch it.

  26. Anonymous says:

    But Cossio, according to “Stars and Stripes”, the new order does not prohibit all pregancies, only those “resulting in the redeployment of the pregnant soldier.”

    I don’t ghink I’m twisting facts (assuming the “Stars and Stripes” report is correct): It stands to reason that if you can terminate your pregnancy before it results in your redeployment, then you can bring yourself into full compliance with the new order.

    Hoorah for the new Army — and its slaughter of innocents in furtherance of mission readiness!

  27. Anonymous says:

    CPT Rob:

    I don’t think your equal protection argument has legs. The order doesn’t apply only against women, but against all service members who might become pregnant.

    And, that seems to include any service member who becomes pregnant even as a result of non-consensual sexual relations.

  28. Anonymous says:

    Typical military stupidity engendered by over-lawyering and political correctness. If the real problem is sex among the troops, ban it — no matter what the JAGs might say.

  29. Anonymous says:

    CPT Rob:

    I do think your EP argument has some merit, considering it would only be female service members who did not abort — prior to possible redeployment — who would be subject to prosecution.

    I think this distinction may impermissibly encumber the Constitutionally-protected reproductive rights of these servicemembers, notwithstanding the doctrine of “military deference”.

  30. Anonymous says:

    CPT Rob:

    I do think your EP argument has some merit, considering it would only be female service members who did not abort — prior to possible redeployment — who would be subject to prosecution.

    I think this distinction may impermissibly encumber the Constitutionally-protected reproductive rights of these servicemembers, notwithstanding the doctrine of “military deference”.

  31. CPT Rob M says:

    Anon 1707- roger on 119a. There was a typo in my original post, it meant to say “issues if SHE has any assistance,” i.e. someone else “helps” her; the article is clear that the woman herself cannot be prosecuted. But even if there’s no legal rule against a self-induced abortion , a policy that leads to self-abortions in the middle of a desert in very unsterile settings like tents, conexes, the back of an FMTV, a latrine trailer, etc. will invariably cause additional medical problems, which then become readiness issues, which was the original concern.

    By the way- thanks to those who have replied w/r to my EP argument.

  32. Anonymous says:

    But, CPT Rob:

    Notwithstanding the medical arguments against all self-help cures, how would a coat-hanger abortion — given the current state of the law — ever become any violation of the UCMJ?

    I’m not aware of any generally applicable requirement for service members to seek professional medical care/treatment for injuries/conditions they may encounter. In fact, doesn’t the service culture encourage them simply to “carry on”?

  33. Anonymous says:

    If the premises of the new order are true, it seems the aborting mother should be given a medal or other suitable recognition for the ultimate sacrifice she made in furtherance of mission readiness.

  34. Anonymous says:

    Leave it to a Democrat regime to criminalize pregnancy.

    Any one aware of such a precedent, any time or any where?

  35. Anonymous says:

    If abortion clinics are really not available in Iraq, might a charged service member also be able to plead “impossibility” with regard to compliance with the order?

  36. Anon says:

    Anon 1910 – no sex orders in the military have existed in Republican and Democratic administrations. Your argument tying this order to the President in office may be the most logically ludicrous thing ever penned in the comments this website, and that is saying a lot. The point is this command wrote a poorly thought out order outlawing pregnancy, but not the necessary prerequisite acts unless conception is achieved. By using the word “pregnancy” instead of “sex” they invited a PAO nightmare.

  37. Anonymous says:

    Anon 1937:

    I concur, with respect to “no sex” (or, at least, “no certain types of sex which we find particular icky”) orders.

    But, is this unprecedented criminalization of pregnancy really just due to a “poorly thought out order” of a particularly dense general and his multiple lawyers or to the well-established predelictions of the current Commander-in-Chief and his party?

    For the sake of this country’s success in Iraq and Afghanistan, I would hope to believe it is the latter — no matter how “ludicrous” you may think it.

  38. Anonymous says:

    Anon 1937:

    I concur, with respect to “no sex” (or, at least, “no certain types of sex which we find particular icky”) orders.

    But, is this unprecedented criminalization of pregnancy really just due to a “poorly thought out order” of a particularly dense general and his multiple lawyers or to the well-established predelictions of the current Commander-in-Chief and his party?

    For the sake of this country’s success in Iraq and Afghanistan, I would hope to believe it is the latter — no matter how “ludicrous” you may think it.

  39. CPT Rob M says:

    Anon 1854- a self-abortion probably can’t be punished under the UCMJ. But just because it’s legal doesn’t mean its a good idea. The Soldier in northern Iraq who self-aborts will almost certainly have complications, requiring her to be hospitalized and/or evacuated from theater, thus removing her from her unit and causing the same detriment to readiness. My point was not that the women who self-abort would be in danger of a court martial, but that they would be in danger of serious physical injury.

    Anon 1910- this is one division, in a four-division corps, in one major geographical command, in a single branch of the armed forces. This is five levels removed from the commander in chief.

  40. Anonymous says:

    CPT Rob:

    My only point as to self-abortion was — as you recognize — that it does not appear to be illegal and that it would most likely accomplish the same objective as a prolonged pregnancy, i.e. removal from the service member’s unit, if not from the entire theater.

    The clear “advantage”, though, is that it would not subject the service member to prosecution. Is the general’s order rationally related to a legitimate military purpose when it creates such perverse effects?

    Might the order be subject, in fact, to even a higher standard of review, given its impact on reproductive rights?

  41. CPT Rob M says:

    Seems like we agree after all then, that this order could create “perverse effects.” I don’t know about “reproductive rights,” but I do think this order, as applied, would be subject to heighened scrutiny for its discriminatory effect (see my equal protection question eighty or ninety posts ago; my guess would be that it would be subject to the intermediate or “substantial interest” standard, since this is an instance of sex-based discrimination, but that’s just my knowledge from Con Law last year; someone probably has a more sophisticated take on this than I do).

  42. Anonymous says:

    Hypothetically — if a pregnant servicemember chose to self-abort the pregnancy as some anons have suggested as a possibility — why couldn’t the command simply charge her with dereliction of duty / obstruction of justice / or some other “clever” Article under the UCMJ if she followed through with the abortion?

  43. Gene Fidell says:

    Here is what Maj Gen Cucolo told the BBC today:

    http://news.bbc.co.uk/2/hi/middle_east/8422989.stm

  44. Anonymous says:

    So before this, he had a critical drain of skills because of women getting pregnant in theater? And he was also losing civilian female skills because of it too?

    Yeah, going to have to prove it to me.

  45. Cossio says:

    Anonymous: Notwithstanding the medical arguments against all self-help cures, how would a coat-hanger abortion — given the current state of the law — ever become any violation of the UCMJ?

    CPT Rob M: Anon 1854- a self-abortion probably can’t be punished under the UCMJ.

    Anonymous: Hypothetically — if a pregnant servicemember chose to self-abort the pregnancy as some anons have suggested as a possibility — why couldn’t the command simply charge her with dereliction of duty / obstruction of justice / or some other “clever” Article under the UCMJ if she followed through with the abortion?

    I guess you guys never heard of Article 134.

    Anon 1732, I see your point, but it would be very hard fror a pregnant women to get an abortion (unless she makes up some ridiclulous abduction story like Maj. Jill Metzger).

    Using a coat hanger in my opinoin is a form of self-mutilation chargeable under the UCMJ (depending on the facts).

  46. Anaon says:

    Anon 1910, do you really think the CINC reached down to the operational level and influenced a CG to issue a punitive general order with the intent that it would encourage abortions on the battlefield? If you believe that, I have a UFO and picture of Elvis at a Waffle House from last Thursday that I would like to sell you. The problem w/ this order is for the Army thinks no sex orders are unlawful so this commander tried create a more narrowly tailored rule. In doing so, he has invited the wackos on the right to conjur up a proabortion conspiracy that reaches back to the White House and the loonies on the left to use it as evidence that the military discriminates against women.

  47. Anonymous says:

    Well, I dont think you have to be loony to believe there is some level of discrimination against women in the military. You also don’t have to be loony to see that this is likely for various reasons to have a disparate impact on women over men.

  48. Some Army Guy says:

    You also don’t have to be loony to realize that the number of servicemembers missing all or part of a deployment due to pregnancies and post-partum recoveries are disproportionately women.

  49. Anonymous says:

    Well, I’d say they are all women. But there is usually no criminal liability for missing servicemembers.

    Put another way, the ones most likely getting pregnant ON PURPOSE with the intent to miss a deployment or avoid hazardous duty are those who haven’t deployed yet. They receive no punishment at all, while those who deploy and then become pregnant, a group I’d argue much less likely to have done so purposefully, now face court-martial.

    That seems backwards to me.

  50. Some Army Guy says:

    This isn’t about criminal culpability or intent to avoid a deployment as much as it is the deleterious impact of these pregnancies.

    If a servicemember gets pregnant before the deployment, the command can plan for the loss of that servicemember: they can get a replacement or deploy someone who would have been on rear-D already. It may be a short planning timeframe, but it can be compensated — and no in-theater resources are wasted.

    If the servicemember gets pregnant downrange, she immediately becomes incapable of performing most jobs. The unit now has to scramble to get her out of theater within 14 days while also taking care of her health; our medical units spend resources on her pregnancy instead of taking care of the servicemembers who are contributing to the mission. The unit is now short personnel until (and if) they can receive a replacement — who probably isn’t as well-trained and certainly isn’t already integrated into the unit.

  51. Anonymous says:

    I dont think anyone is arguing there isn’t an impact, merely that it isn’t a reason to court-martial someone.

  52. Some Army Guy says:

    Has anyone been court-martialed for it?

    Violations of GO1 almost never, on their own, result in a court-martial.

    The lawfulness of an order has little do with whether someone should be court-martialed for it and everything to do with a nexus to good order and discipline and the readiness of the force.

  53. Anonymous says:

    As a practical matter, if the pregnant service member must be redeployed within 14 days, I also wonder how many substitute convening authorities would really have any interest in enforcing MG Cucolo’s order. Or, would placing the member on legal hold pending disposition of the charge override the requirement to redeploy her/

  54. Anonymous says:

    Has anyone been court-martialed for it?

    No, you got me. No one has been court-martialed yet for an order that’s been in place a very short time. You’ve clearly blown any argument against the order right out of the water.

    Snark off, your second sentence seems to indicate if this is simply an additional charge tacked on to other charges that somehow lessens any concerns.

    You know being overweight can very easily have a “nexus to good order and discipline and the readiness of the force.” Clearly, since those are our main concerns, we should start court-martialing folks who are fat. PT failures would be another area that meets your nexus. We should start cort-martialing them as well.

    If the problem is that losing one or two females will result in serious degradation to the mission, then that either says we need more troops or we are stretched too thin.

    The solution in other words lies somewhere other than threatening court-martial.

  55. Some Army Guy says:

    Anon 1506
    Look at the history of GO1. It’s enforced with NJP at most except in the most extreme cases.

    Did you know that you can court-martial someone in the Army for being 1 minute late to a formation?

    Did you know that you can court-martial someone for failing to obey ANY lawful order, no matter how inane?

    I guess since that’s not serious enough to “threaten a court-martial” over we should refine 10 USC 886 and 10 USC 892 so that only sufficiently egregious offenses can be the basis for a threatened court-martial.

    This isn’t about courts-martial, it’s about lawful orders, because UCMJ system is designed with many levels of discipline short of a court-martial. Unless you have another idea how to enforce discipline…

  56. Christopher Mathews says:

    Oh, Lord. Did the CG and his SJA deploy without a public affairs officer? There are a lot of policies that are perfectly lawful but stupid on their face. I’m not sure this one even gets out of the first gate.

    On the bright side, I’m sure someone will ask the general how this is not a pro-gay policy. I can’t wait to see the response to that.

  57. Anonymous says:

    Did you know that you can court-martial someone in the Army for being 1 minute late to a formation?

    Uh yeah, I did. I also think that no one would bat an eye, if the law wasn’t already there, if someone said, from now on, folks who are late to where they are supposed to be will be subject to court-martial.

    Or if Article 92 didn’t exist, no one would say, a court-martial for failing to follow a lawful order, why that’s crazy-talk.

    This is a court-martial for getting pregnant or getting someone pregnant. THAT is the difference. This is not about whether a very minor violation of a legitimate rule should be “court-martiable.”

    This is about the rule itself. So your examples aren’t particularly illustrative of anything.

    This is a bad idea plain and simple. It is also likely to be enforced inquitably and disproportionately impact the wrong folks. How do you scientifically determine when someone was impregnated down to the day? You can’t do it. So what about those folks who get impregnated the night before they ship out?

    Or the ones who do so while held over in Kuwait awaiting deployment into the region? Or the ones who say take R and R early in the cycle and get pregnant while at home?

    How do you address the abortion concerns? How do you deal with the fact that the woman will always be susceptible to C-M for obvious reasons but the man only if the woman coughs him up?

    It’s a dumb idea, a borderline lawful order at best, solving what I cannot believe is a significant problem.

  58. John Harwood says:

    First, federal law prohibits federal funding for abortions at military treatment facilities overseas, so abortion-rights folks, calm down.

    Second, GO-1 has been around since the wars started. I have personally defended countless airmen (both men and women) for violations of this provision of GO-1 in the NJP arena. I’m aware of one female who wanted out of Afghanistan so badly she purposely got knocked up so she could go home. Her result? NJP, with a one-stripe reduction. I’m not sure what all the hullabaloo is about this – we’ve been banning sex for years in the AOR – now we’re just banning the results, too.

  59. Anonymous says:

    Was she in trouble for being purposefully knocked up or for having sex? Bit of a difference. At least the latter is truly neutral.

    There is a difference between banning sex and banning pregnancy.

  60. Late Bloomer says:

    Some Army Guy: If the servicemember gets pregnant downrange, she immediately becomes incapable of performing most jobs. The unit now has to scramble to get her out of theater within 14 days while also taking care of her health; our medical units spend resources on her pregnancy instead of taking care of the servicemembers who are contributing to the mission. The unit is now short personnel until (and if) they can receive a replacement — who probably isn’t as well-trained and certainly isn’t already integrated into the unit.

    Don’t look now, but you’ve just made a decent Clause 1 argument in a nutshell.

  61. Jonas says:

    Frankly, This General is STUPID, did not realize we were living in China.

    Why is this guy trying to disgrace the USA.

  62. Anonymous says:

    so to make a decent clause 1 argument, all you have to do is argue that the unit is short personnel because of a medical condition?

  63. Tami says:

    This whole thing is stupid. What if she was pregnant before deploying, but wasn’t far enough along to detect it? Is she going to be CMed before she even became subject to the order? You can also bet that false claims of rape are going to skyrocket. Finally, a woman who self-aborts will probably get in trouble for maiming herself or malingering.

    The first to get NJP should demand CM–he or she would win.

  64. CPT M says:

    CPT Rob M: Seems like we agree after all then, that this order could create “perverse effects.”I don’t know about “reproductive rights,” but I do think this order, as applied, would be subject to heighened scrutiny for its discriminatory effect (see my equal protection question eighty or ninety posts ago; my guess would be that it would be subject to the intermediate or “substantial interest” standard, since this is an instance of sex-based discrimination, but that’s just my knowledge from Con Law last year; someone probably has a more sophisticated take on this than I do).

    It might be subject to strict scrutiny in the civilian context. In the military, even fundamental rights may be restricted without regard to strict scrutiny.

    Don’t inject civilian constitutional law into this analysis. It is not applicable.

  65. Anonymous says:

    CPT M:

    I disagree, it is applicable but it’s application may vary based on the particular military context. If a civilian constitutional right to sodomy can find its counterpart in the military (see e.g. Marcum), it wouldn’t be difficult to see how an order criminalizing certain pregnancies might have its own issues.

  66. Anonymous says:

    I’m curious: if pregnancy is the problem why not just issue an order requiring all female service members to submit to compulsory contaceptive measures (probably an implant to avoid issues of non-compliance)? Assuming the readiness concerns are valid, how would it be that different from compulsory vaccinations?

  67. Tami says:

    Mandatory vaccinations don’t impact your ability to have kids, so there is no comparison. I think “strict scrutiny” would still be the test, regardless of “military necessity.” The question is–is the right a fundamental right? If so, then strict scrutiny is the standard. While it would be extremely inconvenient to have to replace a pregnant female, it can be done, so I don’t see it passing the “military necessity” test. There is also a problem with this being a “strict liability” crime–intent to avoid pregnancy is irrelevant. And at this point, imposing a “no sex” order would cause more problems with morale, so I don’t see that a being a viable option.

  68. Southern Defense Counsel says:

    If our servicemembers need to have sex with each other to keep their morale up, perhaps I was wrong when I challenged Cossio several threads ago and said that our troops today are just as able, brave, etc, as those of WWII. I don’t buy the morale issue. People can go 6-18 months without sex, and the married ones are already (supposedly) doing it.

  69. Tami says:

    Southern Defense Counsel,

    I’m not going to ask questions about your personal life–if you can go 6-18 months without sex, then power to you. Having been a defense counsel myself, I have seen some of the bad things that happen when some servicemembers go through forced celibacy. I don’t think people should deploy with the expectation that they will be able to have sex (even when married and deployed together), but considering the military has made accomodations to allow people to have consensual sex, whether married or unmarried, I foresee a huge backlash if they were to suddenly impose a “no sex” order to avoid female Soldiers getting pregnant. That’s akin to banning the use of personal computers because a few bad apples decided to download child porn on their computers while deployed–I think that’s a WAY bigger problem than female Soldiers getting pregnant.

  70. Anonymous says:

    you really think the guys in WWII went 18 months without sex?

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