On Tuesday, the U.S. Supreme Court heard oral argument in the case of 50-year-old Russell Bucklew, a Missouri death row prisoner who came within a few hours of his execution in March when the Court granted a stay, in a 5-4 decision, to give it time to study his appeal. Bucklew suffers from cavernous hemangioma, a rare medical condition that causes blood-filled tumors in his head, throat and lips. Because of this, his lawyers argue that if the state executes him by lethal injection, Bucklew will choke to death on his own blood because his veins are so compromised by his condition. They argued that if the execution has to go forward the state should use lethal gas, specifically nitrogen, instead of lethal injection 

At Tuesday’s argument, Bucklew’s attorney, Robert Hochman, told the justices that he isn’t objecting to lethal injection because he’s anticipating there will be problems with the procedure — “I’m assuming everything’s going to go exactly the way they intend it” — he’s objecting because Bucklew’s condition is such that even “If everything goes according to plan, there is constitutionally significant suffering.”

State Solicitor D. John Sauer argued against the alternative of lethal gas, saying it’s never been tested or used in another execution, and was suggested as a delaying tactic — “The goal is to have challenge after challenge after challenge” — and that Bucklew would have had a “stronger case” if he had asked for electrocution or firing squad. And as to whether there would be “significant suffering,” Sauer responded, “We vigorously dispute the suggestion that he’s presented any competent evidence that he actually will experience something like a prolonged drowning.”

There was some concurrence among Court observers that the questioning by the justices fell along ideological lines, although Amy Howe, in Scotusblog, wrote that “It seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew.”

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