A divided US Supreme Court [official website] on Wednesday vacated [order, PDF] an injunction granted by the US Court of Appeals for the Eleventh Circuit [official website], clearing the way for the State of Alabama to execute Jeffrey Lynn Borden.

Borden was sentenced to death for murdering his estranged wife, Cheryl Borden, and her father on Christmas Eve. Borden’s challenge to his execution was premised on the cruel and unusual nature of the three-drug-protocol used by Alabama to execute its inmates.

The challenge was filed with the US District Court for the Middle District of Alabama [official website], which dismissed the case. The Eleventh Circuit subsequently reversed the lower court, ordered it to call an evidentiary hearing, and stayed the execution [AL.Com report]. Alabama appealed to the Supreme Court arguing [SCOTUSblog report] that it has “already carried out four executions using this protocol. Any questions concerning three-drug midazolam protocols have effectively been answered.”

This is not the first challenge Alabama’s three-drug-protocol has faced. In June a similar challenge [JURIST report] was launched for Robert Melson and the US Supreme Court similarly lifted the stay of execution in that case, which was also granted by the Eleventh Circuit. This type of challenge against the three-drug-protocol or against midazolam has become relatively common [JURIST report] in the past year. Specifically, the contention is that the first drug used in the protocol, midazolam, will sedate an individual, but cannot guarantee that such individual will be free of the excruciating pain that is to result from the administration of the remaining two drugs.

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor stated that they would have affirmed the Eleventh Circuit’s order staying the execution. Borden’s subsequent request for a new stay was denied by the Eleventh Circuit “without prejudice,” which would mean that Borden can still seek a stay of execution in the district court.