Senators Demand General Rescind Order on Pregnant Soldiers

Maj. Gen. Cucolo: "I do not ever see myself putting a soldier in jail for this."

December 21, 2009, 11:18 AM

Dec. 22, 2009— -- Four Democratic senators have written a letter to an Army general in Iraq asking him to rescind an order that threatened to court martial female soldiers who become pregnant while deployed in the war zone.

The policy by Maj. Gen. Anthony Cucolo III was instituted on Nov. 4, but it has triggered outrage among women's groups since it became publicly known in recent days.

"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," the senators wrote to Cucolo today. "This defies comprehension. As such, we urge you to immediately recind this policy."

The letter was signed by Sens. Barbara Boxer of California, Barbara Mikulski of Maryland, Jeanne Shaheen of New Hampshire, and Kirsten Gillibrand of New York.

It was the latest salvo to hit Cucolo over the controvesial policy. Earlier the National Organization for Women called the policy "ridiculous."

"How dare any government say we're going to impose any kind of punishment on women for getting pregnant," NOW President Terry O'Neill said. "This is not the 1800s."

O'Neill said NOW would turn to Defense Secretary Robert Gates and even President Obama for help.

Watch "World News with Diane Sawyer" at 6:30 p.m. ET today for more on Maj. Gen. Anthony Cucolo's restriction on pregnancy in Iraq.

Even before the senators took aim at Cucolo's policy, the general had backed away from his threat today to court martial women under his command who got pregnant. His policy statement said violation of the rule would also apply to the men who get female soldiers pregnant, even if the couple is married.

"I regret that the term court martial is bandied about or mentioned," Cucolo said from Iraq in a conference call. "I do not ever see myself putting a soldier in jail for this."

Pregnant soldiers are immediately redeployed out of combat zones to bases where they can get comprehensive medical care.

"The true purpose behind this is to cause them to pause and think about, 'Okay wait a minute. It was written in the order and I'm going to leave my team. I'm going to leave an outfit shorthanded,'" Cucolo said.

Cucolo said that he was not surprised by the reaction and intense interest in his general order, but that those outside the military may not be able to fully understand his motivation.

"I will listen to critics. They provide thought, but they don't actually have to do anything," he said. ""I have a very complex mission."

Cucolo said that in the eight weeks his policy has been in force, four women soldiers were redeployed because they had become pregnant in violation of Cucolo's order. The four women and two male soldiers received letters of reprimand that will not remain in their permanent military files.

A third male soldier, he said, was also punished for getting a female soldier pregnant. He was a noncommissioned officer who was committing adultery. He was also charged with fraternization and given a permanent letter of reprimand. In that case, the man was a sergeant and the female a junior soldier.

One of the pregnant women declined to identify the person who got her pregnant, Cucolo said.

In addition to the four women who got pregnant while on duty in Iraq, Cucolo said four other female soldiers were sent home because they found out they were pregnant, but had become pregnant before being sent to Iraq.

"Will some soldiers hear this, read this and say 'Well that's nothing?' Sure, they might," Cuculo said. "But I've got 22,000 incredible soldiers who are incredible Americans and I'm counting on them to do the right thing." Of the soldiers in his command, 1,682 are women.

Court Martial Threat for Pregnant Soldiers Draws Fire

Cucolo said the Army does not provide emergency contraception or abortive services and does not intend to start.

There's "only discussion about appropriate behavior and consideration of the impact of getting pregnant, of getting someone pregnant," he said. "That's the only discussion that's taken place. Nothing about pills."

"Anyone who leaves this fight early because they made a personal choice that changed their medical status -- or contributes to doing that to another -- is not in keeping with a key element of our ethos, 'I will always place the mission first,' or three of our seven core values: loyalty, duty and selfless service," he continued. "And I believe there should be negative consequences for making that personal choice. "

The pregnancy policy is just one provision in a larger general order that also prohibits soldiers from sexual contact with Iraqis or third-party nationals who are not members of coalition forces.

Provisions in the Nov. 4 order are also applicable to civilians under Cucolo's command.

Georgetown University law professor Gary Solis, a former Marine prosecutor and judge advocate, questioned Cucolo's rule in the first place, but says the general has diluted the effectiveness of his order by announcing he won't court martial anyone who violates the policy.

"Of course when you put out an order, you don't intend to court martial anybody," Solis said. "But that's a logical end."

Solis called the pregnancy policy "unwise" and said that Cucolo's assertion that won't resort to court martial, "does not reflect the purpose of what the orders are."

Army spokesman Lt. Col. Nathan Banks told Monday that Cucolo, like any other commander, has the right to institute and enforce policies as he sees fit.

"Under his command, that's his take," Banks said.

That means, Banks said, that troops in different parts of Iraq and Afghanistan are subject to varying regulations. Some commanders, he noted, have made DUI a potentially court martial offense, while some haven't.

John Hutson, a former longtime military judge advocate and currently the president and dean of Franklin Pierce Law School in New Hampshire, said it's well within Cucolo's rights to hand down such an order, especially if pregnancy has become a serious issue within his ranks.

When a woman becomes pregnant, "you've taken somebody and you've made her less effective," he said. "And I think its only fair that if you do that with the woman then the man be held equally culpable."

Will New Policy Cut Back on Pregnancies Planned to Flee Iraq?

"It's not saying you can't have sex," Hutson said. "You have to take precautions."

Still, he added, "in some respects, it flies in the face of family values."

Civilian military lawyer Wayne Kastl, lead counsel with the Military Defender law firm, said he understands the Army may have its reasons for such an order. Sex among its ranks can cause trouble in many regards, including favoritism of the partner.

Also, soldiers found to be pregnant are sent back to the U.S. in short order and Kastl said he has heard anecdotal evidence of female soldiers intentionally getting pregnant to be sent home.

Because of that, he said, "I can see why they're doing it."

Hutson agreed, saying pregnancies planned to relieve the female soldier of duty is a form of malingering, an Army term for a soldier who injures him- or herself to prevent dangerous assignments.

Kastl noted that the Army already encourages its female soldiers to take medication to stop their menstrual cycle. And in some cases, Cucolo's order may be redundant, since the Army already prohibits fraternization between superiors and subordinates, though it seemingly has no current take on sexual contact between members of the same rank.

Cucolo himself said in the statement to ABC News that his order "made an existing policy stricter."

Hutson worried that Cucolo's policy could cause an increase in abortions overseas. And since military hospitals do not perform such procedures, female officers may find abortions are available not "in the way you want them," Hutson said, forcing women to potentially dangerous providers of such services.

ABC News' Aadel Rashid and Zachary Wolf contributed to this story.