BACKGROUNDER:
WOMEN AND THE DRAFT IN AMERICAWhile women officers and enlisted personnel serve with distinction in the U.S. Armed Forces, women have never been subject to Selective Service registration or a military draft in America. Women who served in the past, and those who serve today in ever increasing numbers, all volunteered for military service.
The U.S. came close to drafting women during World War II, when there was a shortage of military nurses. However, there was a surge of volunteerism and a draft of women nurses was not needed.
After America’s draft ended in 1973, the Selective Service System was maintained in a standby status, just in case a return to conscription became necessary during a crisis. After March 29, 1975, men no longer had to register and Selective Service was placed in "deep standby." But then, in 1980, President Carter reactivated the registration process for men in response to the Soviet invasion of Afghanistan and in reaction to reports that the standby Selective Service System might not meet wartime requirements for rapid manpower expansion of the active and reserve forces.
Although the specter of a future draft remained solely the concern of young men, discussions in Congress and the Administration about registering and conscripting women periodically took place. Section 811 of the Department of Defense Authorization Act, 1980 (P.L. 96-107, Nov. 9, 1979) required the President to send to the Congress a plan for reforming the law providing for the registration and induction of persons for military service. The President sent his recommendations for Selective Service reform in a report dated Feb. 11, 1980. As noted above, the President requested reactivation of registration for men. But another recommendation to the Congress was that the act be amended to provide presidential authority to register, classify, and examine women for service in the Armed Forces. If granted, the President would exercise this authority when the Congress authorized the conscription of men. Although women would become part of the personnel inventory for the services to draw from, their use would be based on the needs and missions of the services. Department of Defense (DOD) policy, which was not to assign women to positions involving close combat, would continue. In response to these recommendations, the Congress agreed to reactivate registration, but declined to amend the act to permit the registration of women. In the legislative history for the Department of Defense Authorization Act, 1981, the Senate Armed Services Committee report stated that the primary reason for not expanding registration to include women was DOD’s policy of not using women in combat. Additional reasons cited in the report included agreement by both civilian and military leadership that there was no military need to draft women and congressional concerns about the societal impact of the registration and possible induction of women.
The exclusion of women from the registration process was challenged in the courts. A lawsuit brought by several men resulted in a 1980 U.S. District Court for the Eastern District of Pennsylvania decision that the MSSA’s gender-based discrimination violated the due process clause of the Fifth Amendment, and the District Court enjoined registration under the Act. Upon direct appeal, in the case of Rostker v. Goldberg, 453 U.S. 57 (1981), the Supreme Court reversed the District Court decision and upheld the constitutionality of the exclusion, ruling that there was no violation of the due process clause of the Fifth Amendment. The Supreme Court based its decision largely on DOD’s policy that excluded women from combat. The Court reasoned that since the purpose of registration was to create a pool of potential inductees for combat, males and females could be treated differently. The Court also noted its inclination to defer to Congress since draft registration requirements are enacted by Congress under its constitutional authority to raise armies and navies, and observed that Congress had in 1980 considered but rejected a proposal to expand registration to women.
In 1992, a Presidential Commission on the Assignment of Women in the Armed Forces reexamined the issue of registration and conscription of women. In its November 1992 report, by a vote of 11 to 3, the Commission recommended that women not be required to register for or be subject to conscription. The Commission cited the 1981 Supreme Court decision in Rostker v. Goldberg upholding the exclusion of women from registration as the basis for its recommendation. The Commission also discussed enacting existing ground combat specialties exclusion policies into law to provide an additional barrier to the amendment of the MSSA to provide for the conscription of women. However, an appendix to its report suggested that public opinion was divided on the issue. The appendix, which included the results of a random telephone survey of 1,500 adults, showed that, in the event of a draft for a national emergency or threat of war (and assuming an ample pool of young men exists), 52 percent of respondents indicated women should be drafted, about 39 percent of respondents indicated women should not be drafted, and 10 percent responded they did not know.
In May 1994, President Clinton asked the Secretary of Defense to update its mobilization requirements for the Selective Service System and, as a part of the effort, "continue to review the arguments for and against continuing to exclude women from registration now that they can be assigned to combat roles other than ground combat." In its subsequent report, the DOD position remained "that the restriction of females from assignments below the brigade level whose primary mission is to engage in direct combat on the ground, provides justification from exempting women from registration (and a draft) as set forth in the decision of the U.S. Supreme Court in Rostker v. Goldberg (1981)." However, the report also recognized the vastly increased role being played by women in each of the Armed Services who, in Fiscal Year 1994, comprised 16 percent of recruits. "Because of this change in the makeup of the Armed Forces," the report observed, "much of the congressional debate which, in the court’s opinion, provided adequate congressional scrutiny of the issue...(in 1981) would be inappropriate today." While maintaining that it was not necessary to register or draft women, the DOD review concluded "the success of the military will increasingly depend upon the participation of women."
In 1998, at the request of U.S. Senator Charles Robb (D-VA), ranking minority member of the Subcommittee on Readiness, Senate Armed Services Committee, the General Accounting Office (GAO) addressed a variety of questions related to gender equity in the military. Included was a budget and resource examination of the impact of requiring women to register with Selective Service. The GAO report* did not address the pros and cons regarding the exclusion of women from ground combat positions or from the Selective Service registration requirement, nor did it make any policy recommendations. Instead, GAO simply described the DOD position that there is no need to register women as "being consistent with its policy of restricting women from direct ground combat."
In May 2003, a Federal District Judge in the case of Schwartz, et al. v. Brodsky, Acting Director of the Selective Service System, Civil Action No. 03-10005-EFH, dismissed a suit filed by five Massachusetts' students who challenged the constitutionality of the male only registration requirement. Adhering to Rostker v. Goldberg, Senior U.S. District Judge Edward F. Harrington said the courts can't interfere with Congress' control over the military, and nothing has changed since the Supreme Court upheld the all-male draft in 1981. The interests advanced by the Military Selective Service Act remains the preparation for a draft of combat troops, and women continue to be barred from ground combat. Additionally, he said, if a deeply-rooted military tradition of male-only draft registration is to be ended, it should be accomplished by that branch of government which has the constitutional power to do so - the Congress of the United States, the elected representatives of the people.
GAO examined the issue from Selective Service cost and staffing points of view, recognizing that registration of women would require legislative action and operational and budgetary changes. "Selective Service System could register women if its authorizing legislation, the Military Selective Service Act, is amended to allow registering women," the report stated. The report provided cost estimates for expanding the registration program to include women, and included an historical summary providing perspectives on women and the draft since America’s transition to an all-volunteer military in the 1970s.
(Complied and Edited by The Office of Public and Intergovernmental Affairs, Selective Service System,January 2004)
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