Posting #21: The Story of the Draft, Women and Men, and Bodily Autonomy

The story:  We learn gender roles at a very early age, lessons impacting the lives we can choose.  Male bodies, we are taught, naturally become boys and men: loud, active, energetic, aggressive, outdoors, and, with the benefits of testosterone at puberty, end life through the violence of war.  Conversely, we learn that female bodies naturally become girls and women: quiet, nurturing, controlled, domestic, and, with the benefits of estrogen at puberty, give life through the peace of birth. It’s a simplistic and black-or-white story, one that reduces humans to their reproductive bits.  But it’s a sharp distinction drawn repeatedly from our very early days to ensure that we follow the gender roles assigned to our sex; violations are severely punished.  So when this gender logic is used to tell the story of why young males, full of testosterone, should be drafted to fight our wars and young women, full of estrogen, should be drafted to produce offspring, the logic is hard to dispute.

My take on the story: The gender logic used to tell the story of who gets drafted to fight American wars is a story I have resisted writing because of the complexity of the issue and my uncertainty about mandatory conscription.  On the one hand, I think there are responsibilities incurred by citizenship, one of those being to contribute to the country’s welfare.  Fighting the country’s wars and serving in the armed forces might be one of many contributions, but there are other modes like volunteering for the Peace Corps, or being a teacher, a healthcare provider, an investigative journalist, or an environmental activist.  On the other hand, I think it’s wrong to presume that citizens loaded up with testosterone are naturally the best warriors or that, because of their assigned gender role, they should want to engage in combat.  

Most importantly, and the subject of this posting, is that I think it’s wrong to exclude from the Draft more than half of American citizens—females—because of the gender logic described above: the presumption that their primary role in life is to procreate. 

Moreover, it is hard to compare the two gender roles that represent for both male and female citizens a loss of bodily autonomy: fighting at war and bearing a child.  Currently, if there is a Draft, young men from 18-26 years old are denied their bodily autonomy when they must surrender their bodies to the nation at war. Of course, they may die.  But research finds that young American men are less likely to die in war than in some American cities, and in recent wars, they die at a rate of one fifth of those killed in the American war in Viet Nam.  But for every day of female’s reproductive lives—approximately 45 years—they are denied their bodily autonomy when expected to bear children.  And, increasingly, they may die, too as a result of pregnancy and giving birth.

What is so thought-provoking in comparing these two gender roles is that 1972/1973 was a turning point for both.  

December 7, 1972 was the last Draft call for young men during the Vietnam War, and by July 1, 1973, the All-Volunteer Force was instituted after 25 continuous years of conscription.  On January 22, 1973—only weeks after that final Draft call—the Supreme Court ruled that the Constitution protected a woman’s right to have an abortion.  Though possibly coincidentally, these two decisions granting legal, bodily autonomy to males and to females occurred at the same time, thus providing some balance to the gender roles they were expected to play.  Men were not required to participate in war and women were not required to continue a pregnancy.   

While the United States has fought wars since then, there has been no Draft since that last call in December 1972, more than 50 years ago.  Furthermore, for nearly five years—from April 1, 1975 to January 1980—males were not required to register for the Draft.  It was only after the December 24, 1979 invasion of Afghanistan by the Soviet Union that during his January 1980 State of the Union address then-President Carter mandated that young men between the ages of 18 and 26 must register with the Selective Service.  And for the next 40 years, registering was also mandated for males who wanted to be eligible for college federal financial aid, a requirement dismissed in the FAFSA Simplification Act enacted on December 27, 2020.  Still, although young men have continued to be required to register for the last 44 years—some of whom are too young to drink alcohol legally—they have regained some measure of bodily autonomy by not being drafted to war. Knowing they had to register for the Selective Service but were highly unlikely to be drafted has meant they had more choice in the lives they could live.

This legal, bodily autonomy for women has not been the case for most of American history, with contraception always a contentious issue and abortion even more so, even though both were regularly practiced.  Women practiced abortion and contraception from the country’s earliest days, sometimes legally and sometimes not.  The diaphragm was devised and used illicitly by the 1930s, but the FDA approved “the pill” in 1960 and IUDs in 1968.  It was not until 1965, however, that the Supreme Court ruled that married couples had the constitutional right to use contraception, and it was not until 1972 that the Supreme Court ruled unmarried people had the constitutional right to use contraception. So the 1973 Supreme Court ruling that women had the constitutional right to choose abortion emerged from a background of acknowledging women’s rights to more bodily autonomy.

For more than fifty years, then, like males who have not been forced into war, females have had a fair share of bodily autonomy by not being forced into procreating.  With access to various forms of contraception, healthcare, and financial resources, many women have been able to choose when and whether to become pregnant and give birth.  This choice has enabled all sorts of citizen liberties, like going to college, having a profession, participating in athletics, serving one’s country in the armed forces, and gaining financial independence.  That women have been able to choose when and whether to have a child has meant they become pregnant much later than previous generations when there was no legal choice, and can limit the number of children they bring into the world.

With the 2022 Supreme Court overturning a woman’s constitutional right to an abortion and contraception now under threat, however, women’s bodily autonomy is endangered while men’s has been enhanced.  Why, then, should we even consider that female American citizens should be subject to the Draft when they are being forced, once again, into their gender role as birth-givers?

The history of Drafts in the US

According to the Selective Service website, “systems of conscription” have been activated by the Congress since the Revolutionary War. Kara Dixon Vuic, who is writing a scholarly book on women and conscription based on archival research, says the drafts have been rare and always controversial, seen as they were an overreach of federal power.  To curb that overreach, the Congress must give the President authority to instate conscription. 

It was not until the Civil War that Congress authorized the President “to require the registration of all able-bodied men between the ages of 20 and 45. The Confederacy also passed its own conscription law, requiring all White men—and later slaves—between 17 and 50 to serve for three years.”  Congress subsequently authorized drafts during the Spanish-American War (1898) and both World Wars. The opposition to a 1917 draft during World War I was intense, when “Tens of thousands of men applied for exemptions, hundreds of thousands failed to register altogether and more than 75,000 were arrested in New York.”  But there was less opposition to a draft during World War II after the Japanese attack on Pearl Harbor in December 1941. Then, the Congress gave President Roosevelt authority to institute a draft for men between the ages of 18 and 45 and, until female nurses in large numbers volunteered, there was some consideration of drafting them, too. After World War II had concluded but the Cold War was beginning, with the 1948 Selective Service Act Congress gave President Truman authority to reinstate the Draft for males between the ages of 19 and 26.  Protests against the Draft grew during the 1965-1973 Vietnam War, with men destroying their draft cards, finding doctors willing to provide medical exemptions, doing everything to remain in draft-exempt-college, or leaving the country for Canada.

Who must register now

All citizens designated as male at birth are required to register within 30 days of their 18^th birthday and remain registered until they turn 26.  According to a chart on the Selective Service website, immigrants who fit that “male at birth” description, documented or not, refugee or not, dual national or not, are required to register.  Fascinatingly, those who attend college at one of the five service academies or participate in an “Officer Procurement Program” at one of six universities—The Citadel, University of North Georgia, Norwich University, Virginia Military Institute, Texas A&M, and Virginia Tech—are not required to register.  Additionally, though the language used is inconsistent and inaccurate because sex and gender differ, “US citizens or immigrants who are assigned male at birth and changed their gender to female [i.e. woman]” are required to register but “Individuals who are born [i.e. assigned at birth] female and have changed their gender to male [i.e. man]” are not required to register. It’s intriguing that the at-birth sex assignment is what matters, even when transgender people are permitted to serve openly in the armed forces and females are permitted to serve in combat units.  But the male-only draft does not pretend to be consistent.

Despite having been raised in the Army and being an American citizen, only because I was a female, I was unaware until later in life that males were legally required to register for a draft.  As a young person whose father deployed to the Vietnam War twice, I was aware of draft protests during the Vietnam War but did not understand who could be drafted or why they would be protesting.  I was in college and an ROTC cadet during the period when registration was not required (1975-1980), so as a female under no obligation to surrender my bodily autonomy by registering for the Draft, I had no idea how the Draft worked or that my male college compatriots did or did not have to register. (I learned later that all of the upperclassmen at my previously all-male college were, to their great horror, assigned draft lottery numbers in their sophomore and junior years, at which point conscription ended.) All three of my (younger) brothers already had appointments to West Point, so registering for the Draft wasn’t discussed at our family dinner table.  Much later as a parent to a young man on the verge of leaving for college, I was surprised to learn that he was required to register. Finally, when I taught college courses having to do with war, inevitably the subject of the Draft would come up.  I would say 98% of the women in my classes hadn’t a clue that their male classmates had this legal requirement, even when those women had brothers old enough to have to register.

I was shocked to learn that my earlier-life ignorance was continuing among women of subsequent generations.

This ongoing ignorance explains my mixed thoughts about a draft and females being excluded.  That more than half of American residents are unaware of this requirement to be sent to war only BECAUSE ONE HAS MALE BODY PARTS seems fundamentally wrong to me. 

The recent history of including females in the Draft

The subject of women’s conscription has been ongoing for the last forty-plus years.  Keep in mind that it is the Legislative Branch that makes and authorizes conscription law, not the Judicial or Executive Branches. The Supreme Court can only interpret law, not make it.  Presidents can prod the Legislative Branch to produce law, but presidents otherwise carry out law.  Still, tracing by president is indicative of the times.

President James Carter’s (1977-1981) 1980 reinstatement of 18-year-old male’s requirement to register tried to include females, but Congress refused because it was then the Department of Defense’s policy not to permit females to join the combat arms.  (This was a semantical issue.  At the time I was in a Military Intelligence tactical unit in West Germany that, had we gone to war, put me and other women in my unit ahead of the line of combat.) More important to my purposes, Congress’s refusal cited the “societal impact of the registration and possible induction of women,” i.e. gender roles that prescribed females as birth-givers.  Some men in Pennsylvania sued, saying the exclusion violated the Fifth Amendment, but in 1981, the Supreme Court ruled the exclusion was constitutional.  This ruling would give Congress cover for another 34 years.

President Ronald Reagan (1981-1989) was inaugurated in January 1981 and, contrary to his campaign pledge and criticism of President Carter’s decision to require Selective Service registration, he continued the registration of young males.  He was also known as a proponent of traditional gender roles, so he not only opposed abortion and passage of 1972’s Equal Rights Amendment, he also opposed females being conscripted. The issue was dormant during his two administrations.

President George H.W. Bush (1989-1993) appointed a Presidential Commission on the Assignment of Women in the Armed Forces in 1992, which concluded in its report that women should not be required to register for or be subject to conscription because of the 1981 Supreme Court ruling.  Still, survey results included in the report determined that 52% of those surveyed indicated females should be drafted.

President William Clinton (1993-2001) asked the Secretary of Defense in 1994 to update the Department’s (DoD) mobilization requirements for the Selective Service System (i.e. the Draft).  The final report concluded it was not necessary to register or draft females, and though they still were prevented from serving in the combat arms, the armed forces were reliant on women’s service.  In 1998, at the request of Senator Charles Robb (D-VA), the General Accounting Office (GAO) was asked to address questions about gender equity in the military. Like the earlier 1994 DoD report, the GAO concluded it was not necessary to register or conscript females because they still were prohibited from serving in the combat arms.

President George W. Bush (2001-2009) Despite President Bush’s alleged support for women around the world and the US invasion of Afghanistan based partly on the premise that women were being treated badly there, I can find no indication that his two administrations questioned the policy excluding females from the draft.

President Barack Obama (2009-2017) made the most significant strides toward including females in the Draft. First, after a multi-year study, in late-2015, the Defense Department changed its policy to permit males and females both to serve in the combat arms, the obstacle that led the Supreme Court in 1981 to rule that excluding females from the Draft was constitutional. Second, a year later, in 2016, the Obama Administration voiced its support for women registering for the Draft.   At the same time, however, the Congress refused as they removed:

a provision from the annual defense policy bill that would have required young women to register. The measure had roiled social conservatives, who decried it as another step toward the blurring of gender lines akin to allowing transgender people to use public lavatories and locker rooms. Rep. Pete Sessions, R-Texas, spoke for a number of Republicans when he described the provision as “coercing America’s daughters” into draft registration.

Despite removing from the policy bill the provision requiring that women register, Congress included in the bill a charge to the National Commission on Military, National, and Public Service (NCMNPS) to study reforms to Selective Service.

President Donald Trump (2017-2021), like Ronald Reagan, was known to prefer traditional gender roles and, as he claimed with his appointments to the Supreme Court, undid women’s fifty-year-old constitutional right to abortion.  Moreover, in aiming to bolster male-only registration, his administration appealed a 2019 federal court ruling that male-only registration with the Selective Service was unconstitutional “because it discriminates based on sex.”  Still, the NCMNPS, established by Congress during the Obama Administration, delivered its final report in March 2020, and concluded that:

the time is right to extend Selective Service System registration to include men and women, between the ages of 18 and 26. This is a necessary and fair step, making it possible to draw on the talent of a unified Nation in a time of national emergency.

Because the report was delivered during the Pandemic, hearings before the Senate Armed Services Committee were postponed until March 2021, during the Biden administration.

President Joseph Biden (2021-present) has not opined about whether he thinks females should or should not register.  Nonetheless, foreseeing action by the Congress on the NCMNPS report, in 2021, Biden’s administration asked the Supreme Court not to take up the 2019 federal court ruling that an all-male registration and Draft is unconstitutional. “Congress’s attention to the question may soon eliminate any need for the court to grapple with that constitutional question,” wrote Biden’s then-acting Solicitor General, Elizabeth Prelogar.  

However, conservative members of the Senate and the House are bucking the NCMNPS recommendation, legislators like Senators Josh Hawley (whose lawyer wife, Erin Hawley, in 2024 argued before the Supreme Court to outlaw Mifepristone), Marco Rubio, Ted Cruz, Tom Cotton, John Boozman, Cindy Hyde-Smith Mike Lee and Representative Chip Roy. According to their gendered logic, women born as females may choose to serve in combat, but they must not be compelled.  Clearly, in their eyes males and females are fundamentally unequal citizens. Born males (including transgender women) must be compelled to go to war; born females (excluding transgender men) may choose to go to war.

So that is where we stand now.  For more than forty years, from 1976 to 2015, the Department of Defense refused to permit females to join the combat arms. This obstacle was the basis for preventing females registering for a potential draft, a hurdle that was ended in 2015.  Now that females are permitted to serve in the combat arms, it seems to me that, like their male counterparts, they ought to be required to register.  Instead, Congressional conservatives are moving the proverbial goalposts by casting this as a gender role and not a legal issue.  Females—“our daughters”—are to be the protected, not the protectors. 

So what?

In what she terms “benevolent sexism,” Political Science professor Suzanne Chod outlines the argument opposed to females in the Draft: “Women need protection, and their skills are nurturers, not fighters. We need to protect them from war so as to not corrupt their virtue and purity and inhibit them from fulfilling their duties as wives and mothers.”  This, she points out, “was the same argument made in the 19th and early-20th centuries to bar women from voting.”  Kara Dixon Vuic, the scholar currently writing about women and the Draft, said in 2021 that “the only legal difference between what men and women do as civilians is men sign up for selective service.” With the overturning of Roe V. Wade in 2022 and some American women now being compelled to continue with pregnancies, it seems to me that this no longer is the case.

Still, including females in the Draft is not only a matter of equity.  I think that there should either be a draft of all residents regardless of their sex, or there should be no draft at all.  With a male-only draft, more than half of American residents do not have the same obligations to the nation. It’s hard not to imagine, though, that an aim of the abortion ban is to push women back into their “proper” gender role as birth-giver. 

But female feminists are not the only people objecting to this discrimination.  Men, too, have objected to a male-only draft, suing (at least) in 1981 and in 2019.  In a 2019 Time article entitled “Why Bringing Back the Draft Could Stop America’s Forever Wars,” Elliot Ackerman, a Marine Corps veteran deployed five times to the “forever wars” in Afghanistan and Iraq, argues not only for a draft whenever the country goes to war, he also argues that females should be included.  As for the Draft generally:

If after 9/11 we had implemented a draft and a war tax [remember from Posting #10: the US borrowed trillions of dollars to pay for the wars], it seems doubtful that the millennial generation would’ve abided 18 successive years of their draft numbers being called, or that their boomer parents would’ve abided a higher tax rate to, say, ensure that the Afghan National Army could rely on U.S. troops for one last fighting season in the Hindu Kush. Instead, deficit spending along with an all-volunteer military has given three successive administrations a blank check with which to wage war.

Ackerman further writes—persuasively—that a draft does not promote war: “This is one of the great counterintuitive realities of the draft. A draft doesn’t increase our militarization. It decreases it. A draft places militarism on a leash.”  He adds, too, that no one—including females—would be excluded from the Draft:

And no one could skip this draft, unlike previous drafts, where through the practice of hiring substitutes during the Civil War, or the hiring of certain podiatrists during the Vietnam War [a reference to Donald Trump, who notoriously received a medical draft exemption in 1968 for alleged bone spurs in his heels], the well-off adeptly avoided conscription. This placed the burden of national defense on those with the least resources. And when those wars turned to quagmires, elites in this country–whose children did not often fill the ranks–were less invested in the outcome.

“Indifference,” Ackerman concludes, “fueled these wars.”

If females were required to register for the Draft, judging from conservative viewpoints aghast that their “daughters” would be deployed, indifference could not prevail.

Perhaps most importantly, carrying ALL the burdens of citizenship—like voting, paying taxes, and registering for the draft—will guarantee rights.  Like not being compelled to give birth.