Death penalty opponents, intent on trying to inhibit states from administering capital punishment, are hoping the U.S. Supreme Court rules against the state of Oklahoma’s use of midazolam as the first drug in its three-drug cocktail used for lethal injection. The state has been relying on midazolam because drug manufacturers, pressured by death penalty opponents, no longer make available drugs previously used; first sodium thiopental, and later pentobarbital, both of which were effective in putting the condemned prisoner into a deep state of unconsciousness before the next two drugs were administered. According to the Mayo Clinic, midazolam, also known as Versed, “is used to produce sleepiness or drowsiness and to relieve anxiety before surgery or certain procedures.”

Because there have been three cases in Oklahoma, Ohio, and Arizona in which midazolam proved ineffective in rendering the inmate totally unconscious, and thus unaware of the pain caused by the following two drugs, capital punishment opponents argue that using midazolam constitutes cruel and unusual punishment, which would violate the Eighth Amendment.

Robin Konrad, arguing for the inmates, wrote in her brief, “A protocol using painful lethal drugs is unconstitutional unless the prisoner is first properly administered a drug that reliably ensures a deep, coma-like unconsciousness throughout the execution. Midazolam cannot serve that purpose.”

Oklahoma Solicitor General Patrick Wyrick dissented, noting in his brief, “Oklahoma’s lethal injection protocol does not present a substantial risk of severe pain and cannot be considered cruel. The record evidence indicates that a large dose of midazolam produces a level of unconsciousness sufficiently deep to render persons insensate to even extremely painful stimuli.” He added, “This case, under the guise of a narrow attack on a single method of execution out of many, is a full-throated attack on the ability of the sovereign states to carry out the death sentences issued by their citizens.”

The Oklahoma case from April 2014, in which Clayton Lockett was injected with 100 milligrams of midazolam but regained consciousness during the administration of the second and third drugs, was investigated, and the results found that the execution went badly because technicians did not properly insert the needle into Lockett.

Last week, Oklahoma Governor Mary Fallin signed a bill permitting nitrogen gas to be used if lethal injection was not available.