Perhaps you've heard of the flap up in Sacramento where Bishop Weigand told Loretto High School to dismiss a drama teacher who had been actively serving as a Planned Parenthood "Pro-Choice Escort" at an abortion clinic up until at most a few weeks before beginning work at the school. Apparently during the six weeks or so she was working at the high school she became 'a beloved teacher' in the eyes of some of the students, and some members of the "Loretto Community" have been arguing that it's unacceptable and closed-minded to fire someone "because of her beliefs" -- especially considering that she hadn't volunteered at the clinic since beginning her employment and she did not (so far as anyone knows) openly advocate abortion in the classroom.
This got me thinking about natural law vs. positive law and the extent to which we feel it appropriate to hold people accountable for violations of the moral law which are not violations of legal statute.
In the wake of WWII, we and our allies came down clearly on the side of a form of universal natural law when we tried Nazi war criminals for "crimes against humanity" -- the which crimes were in no way crimes under the laws in force in Germany at the time they were committed. In effect, we said that some actions are so clearly wrong that someone can be held accountable (even executed) for committing them even if the crimes were allowed or encouraged by the legal system governing the perpetrator. We rejected the most extreme form of legal positivism and endorsed a measure of natural law. As the trial of Saddam Hussein goes on in Baghdad, we must assume that these ideals are still to some extent held, but here and internationally.
But play a thought experiment with me for a moment: Imagine that a year from now, due to some near miraculous change in national opinion, a Human Life amendment is passed asserting that unborn children are (from the time of conception) protected by the constitution and that abortion is illegal, as a form of homicide. Would we demand that Nuremburg style trials be held for the heads of Planned Parenthood and NARAL and for individual abortionists?
Certainly some people would. You can count on at least some people to do almost anything. However, I think the vast majority of reasonable and faithful pro-life advocates (including me) would settle for abolishing abortion and allow an amnesty for those who performed abortions before the ban. Is this a matter of caving to a positivistic approach to morality and law? Would I, in supporting an amnesty, be taking essentially the same position as the critics of Bishop Weigand who say, "I oppose abortion, but I don't think we should fire someone just because she disagrees with us on this issue"?
I would argue that aborting an unborn child at 8 weeks is morally identical to walking up to an eight-year-old and shooting her in the face with a 9mm. However, I also think that aborting an eight-week-old is less obviously evil than shooting an eight-year-old to the unformed conscience. Thus, I think mercy would demand that those involved in abortion prior to a ban not be tried for their crimes. And indeed, I imagine that justice and mercy would demand that the punishment for abortion (even if explicitly illegal) would not be the same as for shooting a defenseless grade schooler -- again on the basis that the act, while equally wrong, is not as obviously wrong to a malformed conscience.
As to the case at Loretto High School, I think the bishop clearly did the right thing -- though I hope that someone in diocesan HR made sure the termination was done in such a way as to make legal action on the teacher's part impossible. While the teacher in question may be less culpable for her actions than a prison camp guard, her actions are equally wrong. And for the very reason that a proper understanding of the evil of abortion requires a well formed conscience, it is doubly important that a person of her convictions not be set up as an example or role model for still impressionable students -- who (Catholic schools being what they are these days) are probably getting a none-too-clear introduction to Catholicism as it is.