BACKGROUNDER:
WOMEN AND THE DRAFT IN AMERICA
While
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
Americas 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 DODs 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 MSSAs 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 DODs 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 courts 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."
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 Americas
transition to an all-volunteer military in the 1970s.
(Complied
and Edited by The Office of Public and Congressional Affairs,
Selective Service System,July 1998)
*Appendix
I of the GAO report is entitled, "Historical Perspectives
on Women and the Draft." It provides an excellent chronological
summary about this issue and nearly all of it is incorporated,
verbatim, in this paper.
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