Senators lead calls for revoking pregnancy policy
December 23, 2009
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Four U.S. senators have asked Army Secretary John McHugh to rescind a policy that makes pregnancy a punishable offense for some soldiers serving in Iraq, saying it “defies comprehension.”
The request from Democrats Barbara Boxer, Barbara Mikulski, Jeanne Shaheen and Kirsten Gillibrand came Tuesday after the general who issued the policy began backing away from it, explaining that he never intended to court-martial or jail women who become pregnant under his command.
The senators joined a chorus of critics who contend that, even if the punishment ends up being mild, the order simply goes too far and infringes on the basic rights of individuals in the name of military readiness.
“This policy could encourage female soldiers to delay seeking critical medical care with potentially serious consequences for mother and child,” the senators wrote in a letter to McHugh. “We can think of no greater deterrent to women contemplating a military career than the image of a pregnant woman being severely punished simply for conceiving a child. This defies comprehension.”
Maj. Gen. Anthony Cucolo, who commands Multi-National Division–North, has defended his decision to include pregnancy among the offenses listed in a General Order that could lead to a court-martial and jail time.
Cucolo said he wanted to send the message that “anyone who leaves the fight early creates a burden on their teammates” and that such decisions “should have professional consequences.”
But the senators said in their letter to McHugh that while they understand Cucolo’s pledge not to imprison offenders, the policy creates a “threat of criminal sanctions” which goes “far beyond what is needed to maintain good order and discipline.”
One expert on military law asserted that if Cucolo has no intention of sending a pregnant soldier to jail, he should never have created a policy making such a scenario possible.
“If you look at it in a balanced way — the needs of the service, impacted adversely by pregnancy — that is a legitimate consideration,” said Linda Strite Murnane, a retired Air Force military judge who finished her career in 2004 as the chief circuit military judge for the Eastern Circuit at Bolling Air Force Base in Washington, D.C. “I don’t think it is answered by the order I’ve seen.”
The pregnancy provision, part of General Order No. 1 for Multi-National Divison-North, creates a slew of legal challenges that seem to counter Cucolo’s stated intentions, Murnane said. Even if Cucolo himself decides to be lenient in applying the order, other commanders might choose to pursue the order as written, Murnane said.
Moreover, Murnane said, nothing in the written order protects women who become pregnant as a result of a sexual assault — though Cucolo said he would not punish women in such cases. And because the rule also applies to married couples, she says it puts them in the position of potentially having to violate spousal privilege during investigations.
“Women in the armed forces — it’s been an ongoing challenge to make that work,” said Murnane, who joined the service in 1974, when women were required to give up their children for adoption if they wanted to remain on active duty.
Cucolo said he foresees punishments handled in administrative ways, such as the temporary reprimand letters given to four pregnant soldiers who have already been disciplined under the ban. Three male soldiers also have been punished — two with the same “local” reprimand letters. The third received a permanent written reprimand because he was a married noncommissioned offier who impregnated a subordinate who is not his wife.
Staff Sgt. Charlotte Horton, who is stationed in southern Baghdad, said the ban has provoked questions that have few answers.
For example, other than rules against fraternization, the military has no rules against sexual activity in Iraq and in some places allows husbands and wives to share living quarters.
“There’s no form of birth control that’s 100 percent,” Horton said, adding that many people oppose birth control for religious reasons. “So how can it be OK to have sex but not to get pregnant?”
With many female troops deploying multiple times in recent years, often with little more than a year at home between deployments, Horton — who is on her third deployment since 2005 — said the pregnancy ban had left many women wondering when they were supposed to start a family.
Others lauded the order, including high-ranking female members of Cucolo’s staff, he said in interviews this week.
“I appreciate what the general was trying to do here,” said Genevieve Chase, founder and executive director of American Women Veterans. “I’m tired of being labeled as a liability because I could end up getting pregnant. And since the order covers both men and women involved, in that respect it does hold everyone accountable equally.”
Still, Chase said she does have concerns that some men might avoid punishment in cases where a pregnant woman declines to identify the man involved.
And it raises questions about birth control availability and whether women will be pressured into using such products.
Cucolo’s explanations also prompt a different question, according to Murnane. If the general declares he’s not going to punish certain violators, what other restrictions — such as alcohol use or sexual contact with Iraqis, which also are listed in the same general order — might fall into the same gray zones?
“Orders aren’t meant to be issued that way,” Murnane wrote in a e-mail in response to a follow-up question. “Orders are intended to be made clear, concise and should be viewed as only being issued when necessary for good order and discipline.”
For Spc. Courtney Smith, a 22-year-old medic from Goldsborough, N.C., the pregnancy ban is “ridiculous.”
Several soldiers from her brigade — the 30th Heavy Brigade Combat Team, North Carolina National Guard, based at a forward operating base near Baghdad — had been sent home after getting pregnant on their deployment, she said. Other soldiers go home for other reasons.
“If someone breaks their leg playing basketball, are we going to punish them too?” she said.
Smith said sexual contact between soldiers was inevitable and — though her medical unit makes contraceptives available to anyone who wants them — that makes some pregnancies inevitable as well.
“A letter of reprimand isn’t going to make any difference anyway,” she said. “It’s not going to stop someone from getting intimate with somebody they want to get intimate with.”