This morning, the Fourth Circuit sitting en banc will hear argument in Richmond Women's Medical Center v. Herring. At issue is whether to reverse a panel decision last May – 527 F.3d 128 - that struck down a Virginia statute similar to that upheld by the Supreme Court in Gonzalez v. Carhart, 550 U.S. 124 (2007). The panel invalidated the Virginia law notwithstanding Carhart because the scope of its criminalization of safe abortion procedures was broader, leaving physicians more exposed to liability for good faith judgments that a jury could find ran afoul of the law. The plaintiffs, represented by the Center for Reproductive Law and Polcy, succeeded in enjoining the statute before it ever took effect. The state's petition for rehearing argued that Gonzalez stood for the proposition that abortion laws could only be challenged as applied, after having gone into effect, on the basis of a particular set of facts presented by the plaintiffs in each case.
It is unlikely that the Fourth Circuit will decide the case in time for Herring to reach the Supreme Court this term, but quite likely that it will be there in the 2009-2010 term. More background here (including some litigation documents) and here.