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.

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.

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.

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

Why is this guy trying to disgrace the USA.

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.

There is a difference between banning sex and banning pregnancy.

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.

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.

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.

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…

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.

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.

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.

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.