Expanding the Selective Service: Legal Issues
Surrounding Women and the Draft
Updated September 14, 2020
Should American women be required to register for the draft alongside their male counterparts? On
March 25, 2020, the National Commission on Military, National, and Public Service (the Commission)
released a report addressing this and other questions relating to military, national, and public service. The
Commission recommended that women should be required to register with the Selective Service System
and be included in any future draft. While the Commission considered changes to the law, recent court
decisions have taken diverging views on whether the current male-only registration requirement is
constitutional. Most recently, on August 13, 2020, the U.S. Court of Appeals for the Fifth Circuit (Fifth
Circuit) ruled that a nearly forty-year-old Supreme Court case, which held that male-only registration is
constitutional, is still controlling law.
This Sidebar provides a brief legal background of the Selective Service System, including legal
consequences of failing to register. It next describes judicial challenges to the male-only draft and
legislative efforts to require women to register. The Sidebar then discusses the creation and conclusions of
the Commission. Finally, it examines issues for Congress.
Legal Background
The Selective Service System is governed by the Military Selective Service Act (MSSA), which Congress
enacted in 1948 and last substantively amended in 1971. Under the MSSA, the President may issue a
proclamation requiring all male U.S. citizens and most male noncitizen residents of the United States
between the ages of 18 and 26 to register with the Selective Service. The current registration period began
when President Carter issued Presidential Proclamation 4771 in 1980. (For more information about the
Selective Service System, see CRS Report R44452, The Selective Service System and Draft Registration:
Issues for Congress, by Kristy N. Kamarck.)
The main purpose of Selective Service registration is to “rapidly provide[] personnel in a fair and
equitable manner” through a military draft when necessary for national security. Activation of the draft
does not require a state of war. Instead, the President can activate the draft when “required to provide and
maintain the strength of the Armed Forces.”
