The "Bodily Autonomy" Abortion Argument Doesn't Hold Water, Legally Speaking
"Bodily Autonomy" is a "Self-Defense" Argument and the Elements are not Established.
I usually post about Biblical issues on this blog, but this post is going to be primarily legal analysis.
A major problem in the abortion debate is that most people haven’t thought deeply enough to understand the arguments in relation to long-established, almost universally accepted laws.
The abortion debate usually includes a lot of accusations and insults in both directions (often emotionally charged), along with various claims about morality, but logic and legal theory are typically left with the Courts (who often haven’t done a very good job with it either, IMO). But most people don’t seem to actually read (or even skim) the Court decisions and thus have an understanding of the decisions limited to whatever CNN or FOX told them.
If the primary legal issue were framed correctly, we might more easily be able to have a calm and reasonable discussion about abortion (probably not, but I'm being an optimist today). At minimum, understanding the legal issue and framing it correctly would limit the debate to one issue rather than watching people hurl insults based on emotion. And limiting it to one issue would assist everyone in understanding the other side’s perspective.
Since the Supreme Court reversed Roe v. Wade, I’ve seen lots of discussion about the right to "bodily autonomy" of the pregnant woman. Many people seem to think bodily autonomy is the primary (only?) issue that should even be considered. If so, then the debate would be over quickly. I don’t know anyone who denies that every human has a right to bodily autonomy TO SOME DEGREE.
But a lot of those people fail to understand or acknowledge that the degree of bodily autonomy can vary based on circumstances. For example, a convict in prison has considerably less bodily autonomy than those who have not been convicted. Prisoners are often subject to strip searches and even body cavity searches. And they certainly can’t leave the prison whenever they want to.
For the average person, even having a job is a limitation on bodily autonomy. Certainly there’s an element of choice in it (i.e. choosing to have a job), but the fact remains that one’s employer requires one to be at work for “x” hours per week, thereby preventing one from taking one’s body somewhere else. This is true even of the self-employed - which I am. The Courts dictate where I have to physically locate my body at various times during the week. And when entering Courthouses, I am subjected to searches (metal detector and potentially pat down) that prevent me carrying items that I might want to carry on my body and which might result in a law enforcement officer touching me when I would prefer that the officer not do so.
Additionally, as a friend of mine recently pointed out on Facebook, the Selective Service system in the United States requires that male citizens and immigrants aged 18-25 register with a military draft registry (at one point in history, it was ages 18-64!), the potential result of which is that any particular male could be forced to go and risk their life in a war (and while it’s been decades since there was a draft, around 16 million men have had their bodily autonomy "violated” through the Selective Service system1 - and many of those men gave their lives for this country).
If one wanted to, one COULD frame the Selective Service system as an “attack on males” - after all, females are not required to register.
It is simply a fact that the right to bodily autonomy is not unlimited.
Additionally, there is an issue which everyone - both supporters and opponents of abortion, and whether or not they even realize it - has decided before they ever take a position on the issue of the woman’s bodily autonomy.
The debate is first and foremost about aborting something that is growing inside the woman’s body. That something (“fetus” or “embryo” or “baby” or “clump of cells” - depending on one’s view of the situation and stage of development) is the entire reason there’s a debate at all.
(Note: While I certainly do hold a particular position regarding abortion, to avoid confusion and/or distracting people with terminology, I’m going to use the scientific term “fetus” to refer to the “something”.)
So the fetus growing inside the woman’s body holds primacy in the debate.
Which means that the legal issue can be boiled down to this: IF the fetus has a right to protection from being terminated, then that right to protection from being terminated has to be weighed against the right to bodily autonomy of the woman in whose body the fetus is growing.
That’s it. That’s the sum total of the legal argument. Everything else is secondary filler.
Note: a “right to protection from being terminated” is essentially a right to bodily autonomy. So the legal issue can be boiled down to competing rights to bodily autonomy between the woman and the fetus. Frankly, the fact that we’re arguing about such a competition between a woman and a fetus is tragic in and of itself. But such is the state of the world and the debate goes back literally 1000s of years2. What we’re dealing with in this country now is nothing new.
It should also be noted in the debate that the decision of whether the right to bodily autonomy of the fetus or the woman is superior has VASTLY different consequences for the fetus vs. the woman:
A: For the woman, she certainly experiences suffering and loss in the course of pregnancy and childbirth. The Bible - on which many “pro-life” people base their argument against abortion - describes childbirth as: “… in pain you shall bring forth children…”3. Pregnancy causes substantial changes in the woman’s body, lasts for nine months, results in a child being born that needs a LOT of care for years, can interfere with career opportunities, etc…
To be fair, if the pregnancy was not desired, pregnancy, bearing, and raising a child IS a substantial burden. In truth, all of that is a burden even if the pregnancy was desired - but the woman who desired the pregnancy had chosen to bear those burdens and that suffering and loss, because she considered the benefits and blessings of bearing and raising a child to be worth the suffering and loss.
It is notable that “pro-choice” people don’t often talk about those benefits and blessings very much when they’re debating abortion - presumably because they do not consider the benefits and blessing worth the suffering and loss. Yet bearing children must include substantial benefits and blessings… or humanity would go extinct.
B: For the fetus, the consequences are more severe. It is terminated. Killed. It no longer exists. Whether it is a “human being” or not while it’s in the womb, it loses the entirety of the potential of it’s life, not just a part of it.
There is no benefit or blessing to the fetus as a result of being aborted.
Everyone involved in the debate should at least acknowledge that the competing claims of the fetus and the woman to bodily autonomy have very different consequences/suffering/loss/benefits/blessings.
Two aspects to consider regarding the competing claims to bodily autonomy:
1: IF the fetus is worthy of protection from being terminated (i.e. bodily autonomy), THEN that right to bodily autonomy would supersede the woman’s right to bodily autonomy. That is so because the consequences of termination are more severe than the consequences of a pregnancy (in most instances). It’s a priority claim, so to speak.
This is the position of people who are "pro-life" or "anti-abortion". It is NOT as if these people deny that women have a right to bodily autonomy - it's that they believe the fetus has a right to bodily autonomy AND that the right of the fetus to bodily autonomy is so important that it supersedes the woman’s right to bodily autonomy.
2: IF the fetus does not have a right to bodily autonomy, THEN the woman’s right to bodily autonomy would supersede the right to bodily autonomy of the fetus.
This is the position of people who are "pro-choice" or "pro-abortion". They believe the right of the woman to bodily autonomy supersedes the right of the fetus to bodily autonomy (if the fetus has that right at all - although I’m going to prove below that pretty much everyone believes that a fetus has that right to some degree).
The ENTIRETY of the abortion debate rests in those two positions. Virtually everything else is a red herring or strawman or emotions rather than logic.
We'd all be better off it we understood the ACTUAL argument and avoided all the other distractions.
At any rate, those who have concluded that bodily autonomy is the primary/only issue worthy of consideration have first concluded that the fetus is does not have a right to bodily autonomy IN CERTAIN SITUATIONS.
Let me say that again: in general - NEITHER SIDE of the debate denies that a woman has a right to bodily autonomy in at least some circumstances and NEITHER SIDE denies that an fetus has a right to bodily autonomy in at least some circumstances. The dispute is over which right takes precedence in which situation.
The political right (which tends to be "pro-life"/"anti-abortion") has been notorious in the last two years for arguing for bodily autonomy in relation to government mandating vaccination, masking, etc... The political left views the right's position on bodily autonomy related to abortion vs. pandemic mandates as evidence of hypocrisy.
The political left (which tends to be "pro-choice"/"pro-abortion"), has been notorious in the last two years for arguing against bodily autonomy in relation to government mandating vaccination, masking, etc... The right views the left's position on bodily autonomy related to abortion vs. pandemic mandates as evidence of hypocrisy.
In fact, the political left - in general - does believe that a fetus has a right to bodily autonomy… the left just bases the right to bodily autonomy of the fetus on whether or not the woman wants to have a baby. I’ll present that in a hypothetical situation below, but first it is necessary to address the issue of homicide.
Legally speaking, homicide is when one human being causes the death of another. Homicide includes more than just murder (manslaughter, for example), and it can be justified in some instances (i.e. self defense), but homicide is obviously never an ideal/preferred outcome because a human being has been killed.
Pretty much everyone (except serial killers) - no matter their position on abortion - agrees that homicide in general should be illegal (with relatively rare exceptions/affirmative defenses like self-defense). We may debate about what the appropriate penalties should be for homicide, but virtually no one debates whether or not homicide should be generally illegal.
Which brings us to a simple hypothetical situation: A pregnant woman who very much wants to have a child is assaulted by a man. The woman miscarries and the fetus dies.
Pretty much everyone - left/right/center and no matter their position on abortion - agrees that causing the death of a fetus that the woman wanted should be a crime. And indeed, most (if not all) states have laws on the books that criminalize that act. Last I looked at the laws, more than 50% of states made causing the death of a fetus in an assault a HOMICIDE.
My own state of Ohio is a good example of that. The Ohio Revised Code4 actually makes purposefully causing the “unlawful” death of a fetus MURDER5:
"No person shall purposely cause… the unlawful termination of another's pregnancy... Whoever violates this section is guilty of murder...".
A key point to think about: “Homicide” requires that the victim of the crime be a human being. As such, in order for causing the death of a fetus to be a homicide, then the fetus has to be a human being. Therefore, the legislature of the State of Ohio has concluded that a fetus is, in fact, a human being. So have the majority of the other states.
Ohio’s statute raises two interesting questions: Since abortion is purposely causing the termination of another’s pregnancy, what would make causing the termination of another’s pregnancy “unlawful”? And what makes abortion “lawful”?
We find the answer to that in other code sections, including this one, in part6:
“As used in the Revised Code, "abortion" means the purposeful termination of a human pregnancy by any person, including the pregnant woman herself, with an intention other than to produce a live birth or to remove a dead fetus or embryo. Abortion is the practice of medicine or surgery for the purposes of section 4731.41 of the Revised Code.”
If we reviewed the other relevant statutes, we’d find that Ohio law creates an exception which makes it lawful to commit homicide of a fetus by allowing physicians to terminate the pregnancy under certain circumstances.
Essentially, if anyone other than a licensed physician purposely causes the termination of the pregnancy, that person has committed murder in the state of Ohio. And if a licensed physician causes the termination of the pregnancy outside the limited circumstances authorized by the exception, then the physician would also have committed a homicide.
It’s a rather strange approach to the law - and that strange approach was forced upon the Ohio legislature by Roe v. Wade and its progeny. It appears likely that in the absence of Roe v. Wade, the Ohio legislature would have banned abortion in most, if not all circumstances - because the Ohio legislature has concluded that a fetus is a human being.
But back to self-defense. The fact that most, if not all states have a self-defense exception/affirmative defense to homicide creates an interesting comparison regarding arguments related to abortion.
Some abortion rights advocates have referred to a fetus growing in a woman’s body as a “parasite”. A theory in support of abortion is that “one person does not have the right to use the body of another person against their will (in this case, against the mother’s will). Therefore, she should have the right to “evict” the fetus from her body.”7
Jia Tolentino wrote in the New Yorker in 20198:
“If the fetus is a person, it is a person who possesses, as Sally Rooney put it in the London Review of Books, “a vastly expanded set of legal rights, rights available to no other class of citizen”—the right to “make free, non-consensual use of another living person’s uterus and blood supply, and cause permanent, unwanted changes to another person’s body.” In the relationship between woman and fetus, she wrote, the woman is “granted fewer rights than a corpse.”
So it appears that a common argument of abortion rights advocates in relation to a woman’s bodily autonomy is that there should be a “self-defense” exception to the homicide of a fetus.
It’s interesting to note that Tolentino (above) allowed for the possibility that the fetus is a person. Northeastern University political science professor Eileen McDonagh went even further and admitted to the fetus being a person when she wrote a book making an explicit argument for a self-defense argument all the way back in the 1990s9:
“McDonagh admits that the fetus is indeed a human life, but as the Chronicle explains her position, "If a woman has the right to defend herself against a rapist, she also should be able to use deadly force to expel a fetus" for violating her privacy if the fetus is unwanted.
No other laws -- except for those restricting abortion rights, she emphasizes -- permit a person to invade another person's body...
In the book, McDonagh points out that "even in a medically normal pregnancy, the fetus massively intrudes on a woman's body and expropriates her liberty. If the woman does not consent to this transformation and use of her body, the fetus's imposition constitutes injuries sufficient to justify the use of deadly force to stop it" -- as in "rape, kidnapping or slavery."…
"This book," she writes, "expands the concept of wrongful pregnancy to include what the fertilized ovum does to a woman when it makes her pregnant without her consent." Self-defense, therefore, is called for."
Is it reasonable and logical for there to be a self-defense exception to homicide of a fetus? Let’s think about that briefly.
First, why is there a self-defense exception to homicide generally? What’s the rationale? The general elements10 (emphasis added):
“To successfully claim self-defense, the defendant must prove four elements.
First, with exceptions, the defendant must prove that he or she was confronted with an unprovoked attack.
Second, the defendant must prove that the threat of injury or death was imminent.
Third, the defendant must prove that the degree of force used in self-defense was objectively reasonable under the circumstances.
Fourth, the defendant must prove that he or she had an objectively reasonable fear that he or she was going to be injured or killed unless he or she used self-defense.”
The first element is going to be nearly impossible to establish in relation to a self-defense exception of homicide of a fetus in relation to the vast majority of abortions. The data shows that somewhere in the range of 98-99% of abortions terminate pregnancies that were the result of consensual sex (and were not the result of incest). The vast majority of those pregnancies would have been in competent adults. Competent adults are (or should be) aware that the biological purpose of sexual intercourse is propagation of the species (the pleasure aspect is secondary and encourages engaging in the behavior, which prevents extinction), and that there is a not-insignificant chance that any particular act of sexual intercourse will result in a pregnancy (in the absence of effective birth control).
As such, I assert that any competent adult who chooses to engage in consensual sexual intercourse (especially without birth control) is assuming the risk of pregnancy and, in fact, is inviting the possibility of a pregnancy.
If a pregnancy results from that informed choice, then the pregnant woman cannot effectively argue that the fetus is committing an unprovoked attack on her. As such, the woman cannot establish a self-defense argument in relation to the fetus that is growing in her body. ALL FOUR elements have to be proven in order to establish the self-defense exception. As such, the self-defense exception has already failed. But I’ll analyze the other elements anyway.
(Lest I appear to be “attacking women” and ignoring male responsibility, if the pregnant woman decides to have the baby, the man who got her pregnant cannot effectively argue that the baby/child is committing an unprovoked attack on him - and in the large majority of instances, the man who got her pregnant is going to be required by the courts to pay child support for 18 years. Sure, he doesn’t have to carry the child in his body for 9 months, but the responsibility of financially supporting a child for 18 years is, in fact, a substantial burden on the male involved in the pregnancy. It requires that the man work to pay his child support, and if he refuses to do so, he can be charged with felony non-support in some states - which can eventually result in loss of his bodily autonomy due to him being placed in prison.)
The second element (imminent threat of injury/death) can arguably be established in some sense. While death from pregnancy/childbirth is relatively rare in modern times, it is a fact that childbirth is painful, often does cause injury, and pregnancy itself causes significant difficulties in the woman’s body. As such, I think a pregnant woman can establish the second element.
The third element (degree of force used in self-defense is reasonable) is more problematic. Because11:
"The general rule on self-defense is that the defendant... must have used a reasonable amount of force, which must have been proportionate to the force being used against them."
Is a fetus truly using “force” against the woman whose body the fetus is growing inside? It’s difficult to imagine what a fetus is doing by merely existing and growing as the use of “force” by the fetus. Additionally, self-defense to homicide generally assumes that the force being used by the attacker is INTENTIONAL. If the fetus has any intention at all, it is merely the intention to survive.
Even if the fetus is somehow using quasi-force against the woman (and even if the lack of intentionality weren’t relevant), is terminating/killing the fetus a reasonable amount of force which is proportionate to the force being used against the woman? It would seem not, given that death or serious bodily harm as a result of pregnancy and childbirth is relatively rare.
As such, I do not believe that the third element can be established, either.
The fourth element (objectively reasonable fear of injury or death) might be established in relation to injury. It’s unlikely to be established in relation to death (with exceptions related to high risk pregnancies). And again, the amount of force applied in self-defense must be proportional. So unless there’s an objectively reasonable fear of death, then terminating/killing the fetus is not a proportional response and the element cannot be established.
As such, it appears that two, or possibly three of the four elements of a self-defense exception to homicide cannot be established in relation to abortion. And thus, the argument for a self-defense exception fails.
To close this section of the post, let’s take a look at Ohio’s self-defense laws12 (emphasis added):
“Cleveland v. Welms, 169 Ohio App. 3d 600, 2006-Ohio-6441, ¶19 -- "To prevail on a nondeadly-force affirmative defense, one must show by a preponderance of the evidence that (1) he was not at fault in creating the situation, (2) he reasonably believed that some force was necessary to defend himself against the imminent use of unlawful force, and (3) the force used was not likely to cause death or great bodily harm…
State v. Robbins (1979), 58 Ohio St. 2d 74 -- Paragraph two of the syllabus sets forth the elements of self-defense in a homicide case or other case where deadly force has been used: "To establish self-defense, the following elements must be shown: (1) the slayer was not at fault in creating the situation giving rise to the affray; (2) the slayer has a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger was the use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger.”
To establish self-defense to a homicide in Ohio (and I think the same is true in most states), the person who caused the death (allegedly in self-defense) has to FIRST prove that he/she was not at fault in creating the situation which caused them to commit homicide.
Again, consenting adults engaging in sexual intercourse have invited the possibility/probability of a pregnancy occurring. As such, they cannot effectively argue that they were not at fault in creating the situation that makes them want to have an abortion.
The argument for a self-defense exception related to abortion fails, generally speaking.
Now, all that said, there would be a stronger legal argument for a self-defense exception in relation to a high risk pregnancy or a pregnancy resulting from rape (there are still obviously possible moral complications with both - my goal with this article isn’t primarily to address those).
In a high risk pregnancy, the risk to the life of the mother could be so high that an argument for legal priority of the woman’s life may be compelling.
In the case of pregnancy resulting from rape, the woman certainly would not have been “at fault” or invited/created the situation which caused her to want to have an abortion.
In both instances, I think the self-defense argument still fails - if for no other reason than the fact that the fetus is blameless in the situation and isn’t intentionally attacking or causing harm to the woman. But in both situations, the argument for a legal exception is stronger than the general argument.
And it should be noted that abortions related to high risk pregnancies and pregnancies resulting from rape constitute a quite small percentage of total abortions. The vast majority of abortions are not performed to prevent probable death of the mother or related to rape/incest issues - the majority appear to be performed for the sake of convenience (career/money/time/etc…). So any arguments related to rape/high risk are outliers in relation to the abortion debate, generally speaking.
A final point regarding Roe v. Wade. The “viability” argument was always silly and not grounded in science.
The Roe Court’s concept of “viability” generally held that because an unborn fetus of a certain “age” is unable to live outside the mother’s womb, the fetus is entirely dependent upon another human being (in the form of its mother) and is thus is not entitled to bodily autonomy.
The entire idea is, frankly, ridiculous - and I say that from a scientific perspective.
A fetus that is carried to full term and which then comes out of its mother’s womb through the birthing process (with or without other “artificial aid”) still remains entirely dependent upon one or more other human beings to live.
Some time ago, I ran a Google search for the terms: “human babies completely helpless at birth”. It returned 1,130,000 results. The first result13 stated, in part (emphasis added):
“Human babies enter the world utterly dependent on caregivers to tend to their every need. Although newborns of other primate species rely on caregivers, too, human infants are especially helpless because their brains are comparatively underdeveloped. Indeed, by one estimation a human fetus would have to undergo a gestation period of 18 to 21 months instead of the usual nine to be born at a neurological and cognitive development stage comparable to that of a chimpanzee newborn.”
The FACT that human babies ‑ even the ones carried to full term ‑ are utterly dependent on caregivers is not scientifically disputed. If the baby is born and no one feeds it, changes it, clothes it, etc…, then that baby will die. Quickly.
As such, the entire concept of “viability” being based on the idea that a fetus cannot survive outside the womb is ridiculous. Even a two (2) year old toddler cannot reasonably survive outside the womb without the care of at least one other human being.
Practically speaking, if some people consider a fetus to be a “parasite” because it is dependent on the woman it is growing inside to keep it alive, then what would those people consider a newborn baby who is living outside a woman but is still entirely dependent on that woman to keep it alive?
Can you see how that might be a slippery slope? It certainly is, as can be seen in this Wikipedia discussion of the article, "After-birth abortion: why should the baby live?" which was published in the Journal of Medical Ethics in 201314:
“The argument of the article is as follows:
1: Abortion is justified because of the moral status of foetuses (their shared status of 'potential persons' is not morally relevant)
2: Abortion is justified when the foetus has severe abnormalities or would be an intolerable burden to its mother/family (at least when adoption is not a viable option due to not being in the best interests of actual persons)
3: Newborns have the same moral status as foetuses (there are no morally relevant differences between them), if they suffer unbearably
4: Newborns may be born with severe abnormalities (that cannot always be diagnosed before birth) and can be an intolerable burden on their mother/family (including when circumstances change after birth)
5: Therefore, "after-birth abortion" (euthanasia of newborns) can be justified in some circumstances”
Frankly speaking, if one allows the assumptions made by the authors of that article (I do not, but if one does), then the argument has a certain logic to it.
And that is the danger of the slippery slope. Where does one draw the line in relation to lawful vs. unlawful abortions? Is there a scientific argument for a particular amount of development of a fetus that demarks a hard line before which the abortion is permissible and after which it isn’t? Should government just set an arbitrary line without regard to science? Government does set arbitrary lines in relation to things like drivers’ licenses, ages of consent, military service, etc…
In conclusion, the self-defense/parasite/bodily autonomy of the woman argument fails when compared to pretty much any set of historical/legal elements of a self-defense exception/affirmative defense.
So, aside from any moral issues related to abortion, the argument based on legal precedent and comparison to other, similar laws isn’t convincing.
"To ancient peoples and the Romans an abortion was amoral. There was nothing in Roman law or in the Roman heart that said, “It is wrong to kill your baby in the womb.”...
Romans agreed with the Greek view of abortion. Some of the most eminent and respected Greek philosophers encouraged and condoned abortion. Aristotle (384-322 BC) encouraged abortion because he feared population explosion. But in the days of Caesar Augustus (27 BC-14 AD), he knew by censuses that the population of Romans in the world was declining. He had tried to curb lax morals and encourage marriages by implementing in 18 BC a law making adultery a crime and 27 years later in 9 AD he enacted Lex Papia Poppaea to promote and reward marriage because the number of Roman men who were unmarried was greater than the number of married men. He blamed the low birth rate on abortion, homosexuals and on men who preferred the licentiousness of the single life to the responsibilities of married life and children. As Caesar, Augustus saw lax morals and low birthrate as threats to the Roman State. He publicly addressed this problem in the Forum....
In the 1st century AD Emperor Augustus, thinking strategically, saw Rome’s corrupt morals and low birth rate as threatening the defense and sustainability of the Roman State. But c. 300 years earlier Aristotle had been worried about the danger to the Greek State of too many children."
https://earlychurchhistory.org/medicine/ancient-roman-abortions-christians/
Some Biblical scholars believe the passage means more than merely the physical pain associated with childbirth. Dr. Peter Enns:
"The Hebrew there... could be translated as "sorrowful conceptions"... that makes sense of what we read in Genesis when it comes to kids... Sarah: barren. Rachel: a lot of trouble and barren until the end... think of the tensions between brothers that were born. Cain and Abel - here they are and one of them kills the other... conceiving children is... a source of sorrow and not just joy."
Ohio has a lesser crime for “recklessly” causing the unlawful termination of another's pregnancy and that is “reckless homicide”, a third degree felony. Not murder, but still homicide. https://codes.ohio.gov/ohio-revised-code/section-2903.041
Well written and well reasoned. Thanks for doing the tedious work of spelling it all out.
The problem we have is that it's not a matter of reason, but morality. The fact that the majority wish to obscure is that the meta-question "when do we allow killing, and why?" applies to the negotiation on when cellular excision becomes infanticide.
The entire "bodily autonomy" argument, as currently shrieked across all the public fora, appears to begin only after all accept that procreative activity is involuntary. Were it voluntary, the calculus of consequence would begin with a woman's right to abstain from procreation, full stop. The discussion and negotiation would then proceed with that a priori assumption.
What is retailed to the public does not appear to reflect the troubled reality of the negotiation. The majority seem to want a discussion that excludes open acknowledgement of the a prioi assumption of complete and utter incontinence. The few shout over the voices of the many, thereby abandoning any hope of using logic as one of several praxes with which to create a framework within which a middle path can be trodden.
So yes, it's mere sophistry to attempt a framing of logic or legality within which to negotiate this moral question.