As if our military doesn’t have enough problems, on April 27 the House Armed Services Committee narrowly approved legislation to “Draft America’s Daughters.”  If the misguided measure makes it into law, Military Selective Service Act (MSSA) obligations would be imposed on young women between the ages of 18-26, on the same basis as men.

This is more than a symbolic gesture.  Drafting unsuspecting girls-next-door in a future national emergency would create a political crisis and a paralyzing administrative overload that would weaken our armed forces at the worst possible time.

During the House committee markup, Marine veteran Duncan Hunter (R-CA) proposed and requested a roll-call vote on his “Draft America’s Daughters” amendment to the 2017 National Defense Authorization Act (NDAA - HR 4909).  Hunter said he wanted to draw attention to the logical result of the administration’s plans to order minimally-qualified women into fighting teams such as Army and Marine infantry.

Committee Chairman “Mac” Thornberry (R-TX) tried to deter the vote and called an initial voice vote in the negative.  (See first video posted here, starting at about the 2:33:16 mark.)  Hunter voted against his own amendment, but most Democrats and six Republicans on the Committee seized the opportunity to take “equality” to extremes.

In the subsequent roll-call vote, Republican members Martha McSally (AZ), Personnel Subcommittee Chairman Joe Heck (NV), Walter Jones (NC), Sam Graves (MO) Steve Knight (CA) and Chris Gibson (NY) joined with all but one Democrat (John Garamendi, CA) in narrowly approving the measure, 32-30.

The United States Congress still has not considered the underlying paramount issue: Should minimally-qualified military women be ordered into combat arms units such as the infantry on the same involuntary basis as men?  The question of whether Selective Service should register and draft women to fight a future war is tied to this issue and informed debate is long overdue.

Would the Supreme Court Still Uphold Women’s Draft Exemption?

In a 1981 landmark decision titled Rostker v. Goldberg, the Supreme Court upheld the constitutionality of women’s exemption from Selective Service.  After extensive debate in 1979, Congress recognized that no one is drafted unless there is a need for “combat replacements” for troops lost in battle.  Women were and still are serving with courage in uniform, but not in the combat arms.

Therefore, as stated in a 1979 Senate Report, registering or calling up equal numbers of civilian women in a time of national emergency would be “administratively unworkable and militarily disastrous.”  The Supreme Court noted that since women were not “similarly situated” in land combat units, exempting them from the draft did not violate equal protection principles.  It was an easy call to make.

The Rostker ruling did not necessarily mean that the Supreme Court agreed with Congress on the underlying issue.  It affirmed the constitutional right of Congress to decide, and said that the district court had no authority to review the correctness of Congress’ decision to exempt women from Selective Service obligations.  The Supreme Court also said that deference was most important when Congress made a “studied choice of one alternative in preference to another.” 

Obama Administration Ignores the Truth

On December 3, 2015, Defense Secretary Ashton Carter announced that he was disregarding the best professional advice of the U.S. Marine Corps, which cited extensive scientific research in asking that infantry and Special Operations Forces remain all-male.  Now that the administration has made this unwise decision unilaterally, minimally-qualified military women are eligible for direct ground combat assignments on the same basis as men.

Given this significant change in underlying facts, would a future Supreme Court decide a similar case challenging male-only Selective Service registration in the same way?  A new CMR Policy Analysis explains how Congress could preserve women’s exemption from Selective Service, if they are willing to exercise constitutional powers in a responsible way:

• CMR Policy Analysis: Women, War, and Selective Service

CMR’s analysis presents excerpts of a well-reasoned paper by Campbell University Law Professor William A. Woodruff, which suggests that the Selective Service law still could exempt women, even under current women-in-land-combat mandates.  To do this, Congress needs to create a legally-sound public record revealing abundant empirical evidence that already exists.

National Security, Not “Women’s Rights”

Selective Service registration is a relatively low-cost contingency plan that backs up the All-Volunteer Force, both active-duty and reserve.  Like all insurance policies, the system is not necessary . . . until it is.  A major national emergency, perhaps on multiple fronts, might require national mobilization and rapid induction of sufficient numbers of civilians who are capable of replacing casualties fallen in battle.

Contrary to statements made by Congresswoman McSally in support of the Hunter amendment, Selective Service does not register or draft support troops or people to play in the band.  In the Army and Marine Corps, the largest communities are infantry.  The purpose of conscription is to provide an effective casualty replacement stream if it is needed to fight and win a major, nation-threatening war.

If Selective Service were re-activated to defend America against an existential threat requiring national mobilization, thousands of yooung women could be called up for evaluation and military training.  Only a small percentage, however, would be eligible for induction under gender-neutral standards that Pentagon officials insist will remain high.

Prof. Woodruff suggests that the same promises of high standards, combined with the full record of research on women in land combat, may provide an alternative rationale for maintaining exemption of young women from mandatory Selective Service.

It is true that some women can meet minimal standards, but this is not a sufficient reason for deciding that all civilian women should be ordered to register for possible induction.  Women are free to volunteer for combat positions, but the physiological reality is that most women cannot meet those standards while most men can.

In view of these realities, Congress could reasonably, rationally, and appropriately determine that it would not make sense for Selective Service to cull thousands of female draftees just to find the few who might meet ground combat arms standards.  Such a policy, in a time of political crisis, would be an administrative nightmare that would weaken America’s defenses at the worst possible time.  Prof. Woodruff notes,

“In light of that reality, Congress could decide that in a period of national mobilization, when time is of the essence, when the blood of our soldiers is being spilled on the field of battle, when the situation is so grave that we must abandon the all-volunteer principle that produced the greatest military force in the history of the world, we simply cannot afford to devote time and resources to identifying those few women who may qualify.”

Exempting women from the draft-eligible pool would be an exercise in reasoned judgement to provide for the national defense in a time of crisis.  As stated in the CMR Policy Analysis, the debate about women in combat and Selective Service should center on military readiness and national security, not women alone.

No one can guarantee the outcome of a future Supreme Court decision, but Prof. Woodruff’s position is consistent with the official Department of Defense analysis issued on December 3, 2015.  That analysis noted that the opening of all combat arms positions to women altered the factual backdrop behind the Rostker decision, but the 1981 Supreme Court did not address whether “other rationales would be sufficient to limit the application of the MSSA to men.”

Inverted Priorities: Egalitarianism over Combat Effectiveness 

If federal courts strike Selective Service law because the administration made military women eligible for ground combat assignments on the same involuntary basis as men, there will be no law at all.  Congress is free to debate the issue and to exercise its constitutional power to write a new law that serves national defense purposes.

That debate should recognize that gender-related physiological differences between men and women fully justify women’s exemption from direct ground combat units, and from Selective Service obligations that would force them into that environment.

As the Marines stated in a report following three years of comprehensive, scientific studies, which Congress has yet to consider, physical strength and endurance are essential for “survivability and lethality” in battle.  In a February 2016 Statement for the Record of the Senate Armed Services Committee, CMR summarized abundant empirical evidence clearly showing that assigning minimally qualified women to the combat arms will make fighting units less strong, less fast, more vulnerable to debilitating injuries, less deployable on short notice, and less capable during prolonged direct ground combat deployments.

Congressman Hunter was correct in saying that a discussion about women in combat is long overdue.  Despite everything that the Obama administration has done, the House has not had a full hearing on women in combat since 1979 – 37 years ago.  This dereliction of oversight duties needs to come to an end, but the “Draft America’s Daughters” amendment is not the way to go.

Instead, members of the Congress and Senate should withdraw or defeat the controversial legislation, and start conducting responsible oversight that preserves and expands the solid record that supports women’s exemption from direct ground combat.  Members on both sides of the aisle need to seriously consider the impact on readiness of military/social policies that will do great harm to military women, men in the combat arms, and mission effectiveness in the All-Volunteer Force.

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Update:  Other organizations joined with CMR in raising oncerns about the “Draft America’s Daughters” bill, which Rep. Duncan Hunter proposed during a House Armed Services Committee session marking up the House committee’s draft of the FY 2017 NDAA.  Fortunately, House Rules Committee Chairman Pete Sessions and Armed Services Committee Chairman “Mac” Thornberry, both of Texas, stepped up to prevent passage of the committee-passed amendment.  If the Senate passes similar language in their version of the NDAA, a conference committee would have to resolve differences.