In a recent post on the First Things blog, law professor Robert T. Miller complains that Catholic bishops are going beyond teaching about faith and morals, stepping into the arena of prudential judgments about empirical circumstances, and thus — Miller claims — leaving their legitimate area of authority. Yet Miller's arguments are not well founded, and are even contradicted by the references that he himself supplies.
   

His example deals with capital punishment. It is clear that Catholic teaching regards the permissibility of capital punishment as something that depends on circumstances (as opposed to, say, abortion or other intrinsic evils, which are always wrong, regardless of circumstances). The judgment of circumstances is a prudential judgment. So far, so good. But then Miller's aim is apparently to cast the Church's opinion on the necessity of capital punishment (in some specific set of circumstances) as just an opinion that Catholics must respect, but not one that would provide any particular  obstacle to an individual coming up with  a different opinion on that specific set of circumstances. For Miller's argument to succeed, the prudential judgment about specific circumstances would have to be taken out of the realm of faith and morals, else the Church's opinion would have authority.   

He  tries to define exactly what levels of belief or assent Catholics must have in relation to different kinds of teaching:    

Catholics are required, in defined circumstances, to believe with theological faith certain assertions by the Roman pontiff and the College of Bishops, and they are required to give a religious submission of will and intellect to other such assertions, but in each case the propositions must concern faith or morals. (See the commentary of the Congregation for the Doctrine of the Faith on the Professio Fidei available here). This is not to say that Catholics may ignore the Roman pontiff or the
bishops on other issues. Quite the contrary: Catholics must consider
what they say with great respect, but they must do so in the process of
forming their own judgments on such matters.      

And Miller also claims, in relation to capital punishment:    

…the Church teaches that sometimes, depending on the circumstances, the death penalty is permissible, and sometimes, depending on the circumstances, the death penalty is not permissible. So far we’re in the realm of morals; hence, depending on whether this teaching is definitive or not, Catholics must accept it either in theological faith or with a religious submission of will and intellect.   

Yet on going to the Ratzinger document he links to, we find three kinds of assent being described: an assent of theological faith for the most important doctrines, a firm and definitive assent to supporting doctrines, and a religious submission of will and intellect to non-definitive teachings. In describing the doctrines associated with the last of these three kinds of assent, the document says:    

A proposition contrary to these doctrines can be qualified as erroneous or, in the case of teachings of the prudential order, as rash or dangerous and therefore "tuto doceri non potest". [Trans: "not able to be taught safely"].   

So, teachings of the prudential order (i.e. teachings which necessitate a judgment about circumstances) certainly can come under the requirement that they be given submission of will and intellect — and that is much more than merely "respect".   

Miller goes on:    

When the bishops go further, however, and make claims about whether actual circumstances in the world are such as to make some particular application of the death penalty right or wrong, we are in the realm of empirical judgments about circumstances, and these judgments are not matters of faith and morals.   

And that is a most bizarre claim. The Church has been judging circumstances throughout its history. How could confessions ever work, if the priest had no authority to decide if a sin had or had not been committed, based on the circumstances? How could the validity of sacraments ever be judged, if circumstances could not be judged? And there are many other such judgments regularly made by the Church, to which the appropriate attitude of a Catholic is religious submission of will and intellect. 

And this submission of will does apply to capital punishment; since a Pope in an encyclical, and subsequently the Church in its Catechism, has judged that the necessity of capital punishment in modern times and circumstances is "very rare". That is a teaching of the prudential order, and not merely an opinion to be given respect.