When his body arrived at the funeral home, after undergoing a state autopsy, the undertaker told the family that the 43-year-old’s internal organs were missing. The family said they had not given permission for his organs to be retained or destroyed.

Moore said her daughter and other son drove four hours to the University of Alabama at Birmingham, where the autopsy had been performed, and picked up a sealed red bag containing what they were told was their brother’s organs. They buried the bag along with him.

“We should not be here. This is something out of science fiction. Any human would not believe that something so barbaric is happening,” Kelvin’s brother Simone Moore, said Tuesday.

Six families, who had loved ones die in the state prison system, have filed lawsuits against the commissioner of the Alabama Department of Corrections and others, saying their family members’ bodies were returned to them missing internal organs after undergoing state-ordered autopsies. The families crowded into a Montgomery courtroom Tuesday for a brief status conference in the consolidated litigation.

“We will be seeking more answers about what happened to these organs and where they ended up,” Lauren Faraino, an attorney representing the families said after court. Faraino said there are additional families who are affected.

In one of the lawsuits, another family said a funeral home in 2021 similarly told them that “none of the organs had been returned” with their father’s body after his death while incarcerated.

The lawsuits also state that a group of UAB medical students in 2018 became concerned that a disproportionate number of the specimens they encountered during their medical training originated from people who had died in prison. They questioned if families of incarcerated people had the same ability as other patients’ families to request that organs be returned with the body.

UAB, in an earlier statement about the dispute, said that the Alabama Department of Corrections was “responsible for obtaining proper authorizations from the appropriate legal representative of the deceased.” “UAB does not harvest organs from bodies of inmates for research as has been reported in media reports,” the statement read.

UAB spokesperson Hannah Echols said in an emailed statement Tuesday that sometimes that organs are kept for additional testing if a pathologist believes it is needed to help determine the cause of death.

The University of Alabama System, which includes UAB, is a defendant in the lawsuits. Lawyers for the university system indicated they will file a motion to dismiss the lawsuits. UAB no longer does autopsies for the state prison system.

The Alabama Department of Corrections did not immediately respond to an email seeking comment.

MONTGOMERY, Ala. (AP) — Additional in vitro fertilization providers in Alabama paused services Thursday, sending patients scrambling to make other plans in the wake of a state Supreme Court ruling that said frozen embryos could be considered children under state law.

Doctors and patients have been grappling with shock and fear this week as they try to determine what they can and can’t do after the ruling by the all-Republican Alabama Supreme Court. Three clinics have announced pauses on services while another facility assured patients that IVF treatment could continue. State legislators also began looking for a way to protect IVF services in the state.

The University of Alabama at Birmingham system, Alabama Fertility Services and The Center for Reproductive Medicine, in conjunction with a related hospital system Infirmary Health, announced a pause on IVF treatments.

“We understand the burden this places on deserving families who want to bring babies into this world and who have no alternative options for conceiving,” Infirmary Health CEO Mark Nix said.

Gabby Goidel, who was days from an expected egg retrieval appointment, got a call Thursday morning from her provider telling her that they would not be able to do an embryo transfer if they sucessfully retrieved eggs.

“I freaked out. I started crying. I felt in an extreme limbo state. They did not have all the answers. I did not obviously have any answers,” Goidel said.

Goidel, who experienced three miscarriages and turned to IVF as a way she and her husband could fulfill their dream of becoming parents, found a place in Texas that will continue her care and plans to travel there Thursday night.

“It’s not pro-family in any way,” Goidel said of the Alabama ruling.

At the Fertility Institute of North Alabama, Dr. Brett Davenport urged patients not to panic and said his clinic will continue providing IVF. But he also urged state policymakers to act and remove the uncertainty for providers.

“What we do could not be any more pro-life. We’re trying to help couples who can’t otherwise conceive a child,” Davenport said.

Davenport said he believes they are on safe legal ground to continuing transferring embryos to a woman. The uncertainties, in his view, surround what clinics can do with frozen embryos that aren’t immediately used.

Patients might decide to create fewer embryos or skip genetic testing if they are uncomfortable having embryos deemed genetically abnormal “being in a holding state, not knowing when we can thaw them or what we can do with them,” Davenport said.

Justices last week said three couples, who had frozen embryos destroyed in a mishap at a storage facility, could pursue wrongful death claims for their “extrauterine children.” The finding, treating the embryos similar to a child or gestating fetus under the wrongful death statute, raised questions about what legal liabilities clinics could face during IVF processes, including the freezing, testing and disposal of embryos.

Justices cited the wording of the wrongful death statute along with language added to the Alabama Constitution in 2018 saying that the state recognizes the “rights of the unborn child.”

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in an opinion.

Alabama lawmakers began scrambling for a potential solution, proposing multiple pieces of legislation.

Republican state Sen. Tim Melson, who is a doctor, said he is not surprised by the unintended consequences of the 2018 constitutional language and intends to file legislation to protect IVF services in the state. Melson said his proposal seeks to clarify that a fertilized egg has legal protections under the statutes once it is implanted in the uterus but until then is a “potential life.”

“I’m just trying to come up with a solution for the IVF industry and protect the doctors and still make it available for people who have fertility issues that need to be addressed because they want to have a family,” Melson said.

Senate Minority Leader Bobby Singleton, a Democrat, said Republicans’ quest to make stringent anti-abortion laws and policies may have eliminated a path for people to become parents.

“At the end of the day, the Republican Party has to be responsible for what they have done,” Singleton said.

The court decision decided only if embryos are covered under Alabama’s wrongful death statute, said Mary Ziegler, a legal historian at the University of California, Davis School of Law. The court did not say embryos had full constitutional rights, she said, or at least not yet.

“I think people in Alabama are rightly expecting that this is the tip of the iceberg though, and this ruling will lead to more down the road,” Ziegler said. She also said anti-abortion groups and politicians have been pushing to get some sort of ruling through the federal courts “that a fetus is a constitutional rights holder.”

“It’s not just about in-vitro and it’s not just about Alabama. It’s part of this nationwide movement too,” she said.

Rachel Rebouche, dean of Temple University Beasley School of Law in Philadelphia, sees the ruling as “emblematic of the long march toward fetal personhood.”

“This may not be the case that launches it, but this is a very strategic decision on the part of anti-abortion forces because they know that personhood bills have failed,” Rebouche said.

Dr. John Storment, a reproductive endocrinologist in Lafayette, Louisiana, said the Alabama decision could affect whether fertility doctors want to move to or stay in that state.

“I don’t think that any doctor knowing that there’s a potential for criminal prosecution would even want to be in that position,” he said. “There’s 49 other states and many other countries they could practice in without the same threat.”

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Associated Press writers Geoff Mulvihill in Philadelphia and Laura Ungar in Louisville, Kentucky, contributed.

MONTGOMERY, Ala. (AP) — Alabama’s largest hospital paused in vitro fertilization treatments Wednesday as providers and patients across the state scrambled to assess the impact of a state court ruling that frozen embryos are the legal equivalent of children.

The University of Alabama at Birmingham health system said in a statement that it must evaluate whether its patients or doctors could face criminal charges or punitive damages for undergoing IVF treatments. “We are saddened that this will impact our patients’ attempt to have a baby through IVF,” the statement from spokeswoman Savannah Koplon read.

Doctors and patients were gripped by a mixture of shock, anxiety and fear as they weighed how to proceed in the wake of the ruling by the all-Republican Alabama Supreme Court that put in question the future of IVF decision.

“Disbelief, denial, all the stages of grief. … I was stunned,” Dr. Michael C. Allemand, a reproductive endocrinologist at Alabama Fertility, which provides IVF services.

Allemand said they are having daily discussions about how to proceed. He said IVF is often the best treatment for patients who desperately want a child, and the ruling threatens their ability to provide that care.

“The moments that our patients are wanting to have by growing their families — Christmas mornings with grandparents, kindergarten, going in the first day of school, with little back-backs— all that stuff is what this is about. Those are the real moments that this ruling could deprive patients of,” he said.

Gabby and Spencer Goidel of Auburn, Alabama, turned to IVF after three miscarriages. The Alabama ruling came down on the same day Gabby began a 10-day series of daily injections ahead of egg retrieval, with the hopes of getting pregnant through IVF next month.

“When I saw this ruling, I got very angry and very hurt that it could potentially stop my cycle. People need to know this is affecting couples — real-life couples who are trying to start families, who are just trying to live the quote, unquote American dream,” Gabby Goidel, 26, said. She said her clinic is continuing to provide treatment for now, but said it will let her know if they have to change course.

Justices — citing language in the Alabama Constitution that the state recognizes the “rights of the unborn child” — said three couples could sue for wrongful death when their frozen embryos were destroyed in a accident at a storage facility.

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling. Mitchell said the court had previously ruled that a fetus killed when a woman is pregnant is covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”

Alabama Chief Justice Tom Parker, in a scripture-draped concurring opinion, wrote that, “even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.”

While the court case centered on whether embryos were covered under the wrongful death of a minor statute, some said treating the embryo as a child — rather than property — could have broader implications and call into question many of the practices of IVF.

“If this is now a person, will we be able to freeze embryos?” Barbara Collura, CEO of RESOLVE: The National Infertility Association, said.

The fertility clinic and hospital in the Alabama case could ask the court to reconsider the decision or ask the U.S. Supreme Court to review the matter if they believe there is a conflict with federal law.

The Alabama Supreme Court decision partly hinged on anti-abortion language added to the Alabama Constitution by voters in 2018, stating it is the “policy of this state to ensure the protection of the rights of the unborn child.”

Eric Johnston, an anti-abortion activist and lawyer who helped draft the constitutional language, said the “purpose of that was more related to abortion.”

He said it was intended to clarify that the Alabama Constitution does not protect the right to abortion and eventually laid the groundwork for Alabama to ban abortions when states regained control of abortion access. However, opponents of the constitutional amendment warned in 2018 that it was essentially a personhood measure that could give rights to fertilized eggs.

“Modern science has raised up this question about well is a fertilized egg that is frozen — is that a person? And that’s the ethical, medical, legal dilemma that we’ve got right now,” Johnston said.

“It’s a very complicated issue,” he added.

MONTGOMERY, Ala. (AP) — The Alabama Supreme Court has ruled that frozen embryos can be considered children under state law, a decision critics said could have sweeping implications for fertility treatment in the state.

The decision was issued in a pair of wrongful death cases brought by three couples who had frozen embryos destroyed in an accident at a fertility clinic. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.”

“Unborn children are ‘children’ … without exception based on developmental stage, physical location, or any other ancillary characteristics,” Justice Jay Mitchell wrote in Friday’s majority ruling by the all-Republican court.

Mitchell said the court had previously ruled that fetuses killed while a woman is pregnant are covered under Alabama’s Wrongful Death of a Minor Act and nothing excludes “extrauterine children from the Act’s coverage.”

The ruling brought a rush of warnings about the potential impact on fertility treatments and the freezing of embryos, which had previously been considered property by the courts.

“This ruling is stating that a fertilized egg, which is a clump of cells, is now a person. It really puts into question, the practice of IVF,” Barbara Collura, CEO of RESOLVE: The National Infertility Association, told The Associated Press Tuesday. The group called the decision a “terrifying development for the 1-in-6 people impacted by infertility” who need in-vitro fertilization.

She said it raises questions for providers and patients, including if they can freeze future embryos created during fertility treatment or if patients could ever donate or destroy unused embryos.

Sean Tipton, a spokesman with the American Society for Reproductive Medicine, said at least one Alabama fertility clinic has been instructed by their affiliated hospital to pause IVF treatment in the immediate wake of the decision.

Dr. Paula Amato, president of the American Society for Reproductive Medicine, said a decision to treat frozen fertilized egg as the legal equivalent of a child or gestating fetus could limit the availability of modern health care.

“By insisting that these very different biological entities are legally equivalent, the best state-of-the-art fertility care will be made unavailable to the people of Alabama. No health care provider will be willing to provide treatments if those treatments may lead to civil or criminal charges,” Amato said.

Gabby Goidel, 26, who is pursuing IVF treatment in Alabama after three miscarriages, said the court ruling came down on the same day she began daily injections ahead of egg retrieval.

“It just kind of took me by by storm. It was like all I could think about and it was just a very stressful thing to hear. I immediately messaged my clinic and asked if this could potentially halt us. They said we have to take it one day at a time,” Goidel said.

She said her clinic is continuing to provide treatment for now, but said it will let her know if they have to change course.

Goidel said she turned to IVF and preimplantation genetic testing after the multiple miscarriages related to genetic issues.

“Without IVF, I would have to probably go through several more miscarriages before I even had an option of having a baby that is my own,” she said.

The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples paid to keep others frozen in a storage facility at the Mobile Infirmary Medical Center. A patient in 2020 wandered into the area and removed several embryos, dropping them on the floor and “killing them,” the ruling said.

The justices ruled that wrongful death lawsuits by the couples could proceed. The clinic and hospital that are defendants in the case could ask the court to reconsider its decision.

Michael Upchurch, a lawyer for the fertility clinic in the lawsuit, Center for Reproductive Medicine, said they are “evaluating the consequences of the decision and have no further comment at this time.”

An anti-abortion group cheered the decision. “Each person, from the tiniest embryo to an elder nearing the end of his life, has incalculable value that deserves and is guaranteed legal protection,” Lila Rose, president and founder of Live Action said in a statement.

Chief Justice Tom Parker issued a concurring opinion in which he quoted the Bible in discussing the meaning of the phrase “the sanctity of unborn life” in the Alabama Constitution.

“Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory,” Parker said.

Justice Greg Cook, who filed the only full dissent to the majority opinion, said the 1872 law did not define “minor child” and was being stretched from the original intent to cover frozen embryos.

“No court — anywhere in the country — has reached the conclusion the main opinion reaches,” he wrote, adding the ruling “almost certainly ends the creation of frozen embryos through in vitro fertilization (IVF) in Alabama.”

The Alabama Supreme Court decision partly hinged on anti-abortion language added to the Alabama Constitution in 2018, stating it is the “policy of this state to ensure the protection of the rights of the unborn child.”

Supporters at the time said it would have no impact unless states gained more control over abortion access. States gained control of abortion access in 2022.

White House press secretary Karine Jean-Pierre said the Alabama decision reflected the consequences of the Supreme Court overturning Roe v. Wade and blamed Republican elected officials from blocking access to reproductive and emergency care to women.

“This president and this vice president will continue to fight to protect access to reproductive health care and call on Congress to restore the protections of Roe v. Wade in federal law for all women in every state,” Jean-Pierre told reporters aboard Air Force One.

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Aamer Madhani aboard Air Force One contributed to this report.

ATMORE, Ala. (AP) — Alabama executed a convicted murderer with nitrogen gas Thursday, putting him to death with a first-of-its-kind method that once again placed the U.S. at the forefront of the debate over capital punishment. The state said the method would be humane, but critics called it cruel and experimental.

Officials said Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. at an Alabama prison after breathing pure nitrogen gas through a face mask to cause oxygen deprivation. It marked the first time that a new execution method has been used in the United States since lethal injection, now the most commonly used method, was introduced in 1982.

The execution took about 22 minutes, and Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.

In a final statement, Smith said: “Tonight Alabama causes humanity to take a step backwards. … I’m leaving with love, peace and light.”

He made the “I love you sign” with his hands toward family members who were witnesses. “Thank you for supporting me. Love, love all of you,” Smith said.

Alabama Gov. Kay Ivey said the execution was justice for the murder-for-hire killing of 45-year-old Elizabeth Sennett in 1988.

“After more than 30 years and attempt after attempt to game the system, Mr. Smith has answered for his horrendous crimes. … I pray that Elizabeth Sennett’s family can receive closure after all these years dealing with that great loss,” Ivey said in a statement.

Mike Sennett, the victim’s son, said Thursday night that Smith “had been incarcerated almost twice as long as I knew my mom.”

“Nothing happened here today is going to bring Mom back. It’s kind of a bittersweet day. We are not going to be jumping around, whooping and holler, hooray and all that. … I’ll end by saying Elizabeth Dorlene Sennett got her justice tonight,” he said.

The state had previously attempted to execute Smith in 2022, but the lethal injection was called off at the last minute because authorities couldn’t connect an IV line.

The execution came after a last-minute legal battle in which his attorneys contended the state was making him the test subject for an experimental execution method that could violate the constitutional ban on cruel and unusual punishment. Federal courts rejected Smith’s bid to block it, with the latest ruling coming Thursday night from the U.S. Supreme Court.

Justice Sonia Sotomayor, who along with two other liberal justices dissented, wrote: “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before. The world is watching.”

The majority justices did not issue any statements.

The state had predicted the nitrogen gas would cause unconsciousness within seconds and death within minutes. State Attorney General Steve Marshall said late Thursday that nitrogen gas “was intended to be — and has now proved to be — an effective and humane method of execution.”

Asked about Smith’s shaking and convulsing on the gurney, Alabama corrections Commissioner John Q. Hamm said they appeared to be involuntary movements.

“That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said. “Nothing was out of the ordinary from what we were expecting.”

Smith’s spiritual adviser, the Rev. Jeff Hood, said the execution did not match the state attorney general’s prediction in court filings that Smith would lose consciousness in seconds followed by death within minutes.

“We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life,” said Hood, who attended the execution.

Some doctors and organizations had expressed alarm about the method, and Smith’s attorneys asked the Supreme Court to halt the execution to review claims that it violates the constitutional ban on cruel and unusual punishment and deserved more legal scrutiny before it was used on a person.

“There is little research regarding death by nitrogen hypoxia. When the State is considering using a novel form of execution that has never been attempted anywhere, the public has an interest in ensuring the State has researched the method adequately and established procedures to minimize the pain and suffering of the condemned person,” Smith’s attorneys wrote.

In her dissent, Sotomayor said Alabama has shrouded its execution protocol in secrecy, releasing only a heavily redacted version. She also said Smith should have been allowed to obtain evidence about the protocol and to proceed with his legal challenge.

“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” Sotomayor wrote.

“Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote. “I sincerely hope that he is not proven correct a second time.”

Justice Elena Kagan wrote a separate dissent and was joined by Justice Ketanji Brown Jackson.

In his final hours, Smith met with family members and his spiritual adviser, according to a prison spokesperson.

He ate a last meal of T-bone steak, hash browns, toast and eggs slathered in A1 steak sauce, Hood said by telephone before the execution was carried out.

“He’s terrified at the torture that could come. But he’s also at peace. One of the things he told me is he is finally getting out,” Hood said.

The execution protocol called for Smith to be strapped to a gurney in the execution chamber — the same one where he was strapped down for several hours during the lethal injection attempt — and a “full facepiece supplied air respirator” to be placed over his face. After he had a chance to make a final statement, the warden, from another room, was to activate the nitrogen gas. It would be administered through the mask for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

Hamm, the corrections commissioner, confirmed afterward that the gas was flowing for about 15 minutes.

Sant’Egidio Community, a Vatican-affiliated Catholic charity based in Rome, had urged Alabama not to go through with the execution, saying the method is “barbarous” and “uncivilized” and would bring “indelible shame” to the state. And experts appointed by the U.N. Human Rights Council cautioned they believe the execution method could violate the prohibition on torture.

Some states are looking for new ways to execute people because the drugs used in lethal injections have become difficult to find. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state had attempted to use the untested method until now.

Smith’s attorneys had raised concerns that he could choke to death on his own vomit as the nitrogen gas flows. The state made a last-minute procedural change so he would not be allowed food in the eight hours beforehand.

Sennett was found dead in her home March 18, 1988, with eight stab wounds in the chest and one on each side of her neck. Smith was one of two men convicted in the killing. The other, John Forrest Parker, was executed in 2010.

Prosecutors said they were each paid $1,000 to kill Sennett on behalf of her pastor husband, who was deeply in debt and wanted to collect on insurance. The husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.

Smith’s 1989 conviction was overturned, but he was convicted again in 1996. The jury recommended a life sentence by 11-1, but a judge overrode that and sentenced him to death. Alabama no longer allows a judge to override a jury’s death penalty decision.

Kenneth Eugene Smith, who survived the state’s previous attempt to put him to death by lethal injection in 2022, is scheduled to be put to death Thursday by nitrogen hypoxia. If carried out, it would the first new method of execution since lethal injection was introduced in 1982.

The state maintains that nitrogen gas will cause unconsciousness quickly but critics have likened the never-used method of execution to human experimentation.

Nitrogen hypoxia execution would cause death by forcing the inmate to breathe pure nitrogen, depriving him or her of the oxygen needed to maintain bodily functions.

No state has used nitrogen hypoxia to carry out a death sentence. In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to authorize the use of nitrogen gas to execute prisoners.

Some states are looking for new ways to execute inmates because the drugs used in lethal injections, the most common execution method in the United States, are increasingly difficult to find.

Nitrogen, a colorless, odorless gas, makes up 78% of the air inhaled by humans and is harmless when breathed with proper levels of oxygen.

The theory behind nitrogen hypoxia is that changing the composition of the air to 100% nitrogen will cause Smith to lose consciousness and then die from lack of oxygen.

Much of what is recorded in medical journals about death from nitrogen exposure comes from industrial accidents — where nitrogen leaks or mix-ups have killed workers — and suicide attempts.

After Smith is strapped to the gurney in the execution chamber, the state said in a court filing that it will place a “NIOSH-approved Type-C full facepiece supplied air respirator” — a type of mask typically used in industrial settings to deliver life-preserving oxygen — over Smith’s face.

The warden will then read the death warrant and ask Smith if he has any last words before activating “the nitrogen hypoxia system” from another room. The nitrogen gas will be administered for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

The state heavily redacted sections of the protocol related to the storage and testing of the gas system.

The Alabama attorney general’s office told a federal judge that the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.”

Smith’s attorneys say the state is seeking to make him the “test subject” for a novel execution method.

They have argued that the mask the state plans to use is not air tight and oxygen seeping in could subject him to a prolonged execution, possibly leaving him in a vegetative state instead of killing him. A doctor testified on behalf of Smith that the low-oxygen environment could cause nausea, leaving Smith to choke to death on his own vomit.

Experts appointed by the United Nations Human Rights Council earlier this month cautioned that, in their view, the execution method would violate the prohibition on torture and other cruel, inhuman or degrading punishment.

The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia can be an acceptable method of euthanasia under certain conditions for pigs but not for other mammals because it creates an “anoxic environment that is distressing for some species.”

Not exactly. Some states previously used hydrogen cyanide gas, a lethal gas, for executions. The last prisoner to be executed in a U.S. gas chamber was Walter LaGrand, the second of two German brothers sentenced to death for killing a bank manager in 1982 in southern Arizona. It took LaGrand 18 minutes to die in 1999.

Smith was one of two men convicted of the 1988 murder-for-hire of a preacher’s wife. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect insurance money.

Alabama attempted to execute Smith in 2022 by lethal injection. He was strapped to the gurney in the execution chamber being prepared for lethal injection, but the state called off the lethal injection when execution team members had difficulty connecting the second of two required intravenous lines to Smith’s veins. Smith was strapped to the gurney for nearly four hours, according to his lawyers, as he waited to see if the execution would go forward.

The question of whether the execution can proceed will end up before the U.S. Supreme Court.

The 11th U.S. Circuit Court of Appeals heard arguments Friday in Smith’s request to block the execution. After the court rules, either side could appeal.

Smith has argued that the state’s proposed procedures violate the ban on cruel and unusual punishment. He has also argued that Alabama violated his due process rights by scheduling the execution when he has pending appeals and that the face mask will interfere with his ability to pray.

In a separate case, Smith is arguing it would violate the constitutional ban on cruel and unusual punishment for the state to make a second attempt to execute him after he already survived one execution attempt. Lawyers for Smith on Friday asked the U.S. Supreme Court to stay the execution to consider that question.

Lethal injection is the most commonly used execution method in the United States, but death penalty states have struggled at times to obtain the needed drugs or encountered other problems in connecting intravenous lines.

If the Alabama execution goes forward, other states may seek to start to using nitrogen gas.

If the execution is blocked by the court or botched, it could halt or slow the pursuit of nitrogen gas as an alternative execution method.

MONTGOMERY, Ala. (AP) — Alabama will be allowed to put an inmate to death with nitrogen gas later this month, a federal judge ruled Wednesday, clearing the way for what would be the nation’s first execution under a new method the inmate’s lawyers criticize as cruel and experimental.

U.S. District Judge R. Austin Huffaker rejected Alabama inmate Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled Jan. 25 execution by nitrogen hypoxia. Smith’s attorneys have said Alabama is trying to make Smith the “test subject” for an untried execution method after he survived the state’s previous attempt to put him to death by lethal injection.

Robert Grass, the inmate’s attorney, said his team will appeal the decision but he declined further comment. Alabama Attorney General Steve Marshall’s office was expected to issue a statement Wednesday afternoon. The question of whether the planned execution can ultimately proceed could end up before the U.S. Supreme Court.

The state’s plans call for placing a respirator-type face mask over Smith’s nose and mouth to replace breathable air with nitrogen, causing him to die from lack of oxygen. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state has attempted its use thus far.

Smith’s attorneys had argued the new protocol is riddled with unknowns and potential problems that violate the constitutional ban on cruel and unusual punishment.

Huffaker acknowledged that execution by nitrogen hypoxia is a new method but noted that lethal injection — now the most common execution method in the country — once was also new. He said that while Smith had shown theoretical risks of pain and suffering under the state’s protocol, those risks do not rise to an unconstitutional violation.

“Smith is not guaranteed a painless death. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework,” Huffaker wrote in the 48-page ruling.

Huffaker also wrote that there wasn’t enough evidence to find that the protocol “is substantially likely to cause Smith superadded pain short of death or a prolonged death.”

Smith, now 58, was one of two men convicted of the murder-for-hire of a preacher’s wife in 1988 that rocked a small north Alabama community. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.

Smith survived the state’s prior attempt to execute him. The Alabama Department of Corrections tried to give Smith a lethal injection in 2022 but called it off when authorities could not connect the two intravenous lines needed to proceed.

The judge’s ruling letting the nitrogen execution plan go forward came after a court hearing in December and legal filings in which attorneys for Smith and Alabama gave diverging descriptions of the risks and humaneness of death from nitrogen gas exposure.

The state attorney general’s office had argued that the deprivation of oxygen would “cause unconsciousness within seconds, and cause death within minutes.” Its court filings compared the new execution method to industrial accidents in which people passed out and died after exposure to nitrogen gas.

But Smith’s attorneys noted in court filings that the American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is an acceptable method of euthanasia for pigs but not for other mammals because it could create an “anoxic environment that is distressing for some species.”

Smith’s attorneys also argued that the gas mask, which sits over the nose and mouth, would interfere with Smith’s ability to pray aloud or make a final statement before witnesses in his final moments.

The attorney general’s office called those concerns speculative.

The Alabama prison system agreed to minor changes to settle concerns that Smith’s spiritual adviser would be unable to minister to him before the execution. The state wrote that the spiritual adviser could enter the execution chamber before the mask was placed on Smith’s face to pray with him and anoint him with oil.

The murder victim Sennett was found dead on March 18, 1988, in the home she shared with her husband Charles Sennett Sr. in Alabama’s Colbert County. The coroner testified that the 45-year-old woman had been stabbed repeatedly. Her husband, then the pastor of the Westside Church of Christ, killed himself when the murder investigation focused on him as a suspect, according to court documents.

Smith’s initial 1989 conviction was overturned on appeal. He was retried and convicted again in 1996. The jury recommended a life sentence by a vote of 11-1, but a judge overrode the recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s decision on death penalty decisions.

John Forrest Parker, the other man convicted in the case, was executed in 2010.

Yet, a week after multiple videos showing the now-infamous brawl and valiant defense of the outnumbered co-captain were shared widely on social media, it’s clear the event truly tapped into the psyche of Black America and created a broader cultural moment.

Andrea Boyles, a sociology professor at Tulane University, said a long history of anti-Black racism and attacks and current events likely magnified the attack’s impact and response.

“Especially at a time like now where we see an increase in anti-Black racism through legislation and otherwise, whether we’re thinking about history, the banning of Black history and curriculum and all sorts of things across the state of Florida” and elsewhere, Boyles said. “So this is why it is on the forefront of people’s minds. And folks are very much tuned in, Black people in particular.”

Many see the Aug. 5 ordeal on the riverfront dock in Montgomery, Alabama’s capital city steeped in civil rights history, as a long-awaited answer to countless calls for help that went unanswered for past Black victims of violence and mob attacks.

“We witnessed a white mob doing this to him,” said Michelle Browder, an artist and social justice entrepreneur in Montgomery, describing the attack by boaters on the Black riverboat co-captain.

“I call it a mob because that is what it was, it was a mob mentality,” she added. “It then became a moment because you saw Black people coming together.”

After being inundated with images and stories of lethal violence against Black people, including motorists in traffic stops, church parishioners and grocery shoppers, the video from Montgomery struck a chord because it didn’t end in the worst of outcomes for Black Americans.

“For Montgomery to have this moment, we needed to see a win. We needed to see our community coming together and we needed to see justice,” Browder said.

Videos of the brawl showed the participants largely divided along racial lines. Several white men punched or shoved the Black riverboat co-captain after he took a separate vessel to shore and tried to move their pontoon boat. The white boaters’ private vessel was docked in a spot designated for the city-owned Harriott II riverboat, on which more than 200 passengers were waiting to disembark.

The videos then showed mostly Black people rushing to the co-captain’s defense, including a Black teenage riverboat crew member who swam to the dock. The videos also showed the ensuing brawl that included a Black man hitting a white person with a folding chair.

As of Friday, Alabama police had charged four white people with misdemeanor assault. The folding chair-wielding man turned himself in Friday and was charged with disorderly conduct.

Jim Kittrell, the captain of Harriott II, told The Daily Beast that he thought race might have been a factor in the initial attack on his co-captain, but the resulting melee was not a “Black and white thing.”

“This was our crew upset about these idiots,” Kittrell also told WACV radio station.

He later explained that several members of his crew, seen confronting the pontoon boat party after the riverboat docked, “felt they had to retaliate, which was unfortunate.”

“I wish we could have stopped it from happening but, when you see something like that, it was difficult. It was difficult for me to sit there in the wheelhouse watching him being attacked,” Kittrell told the station.

Kittrell told The Associated Press by phone that the city had asked him not to talk about the brawl.

Major Saba Coleman of the Montgomery Police Department said on Tuesday that hate crime charges were ruled out after the department consulted with the local FBI. But several observers noted the presence of a hate motivation, or lack thereof, on the part of the pontoon boat party was not why the event resonated so strongly.

“All these individuals having smartphones and cameras have democratized media and information. In the past, it was a very narrow scope on what news was being reported and from what perspectives,” NAACP President and CEO Derrick Johnson said.

The technology, Johnson added, “opened up an opportunity for America as a whole to understand the impact of racism, the impact of violence and the opportunity to create a narrative that’s more consistent with keeping African Americans and other communities safe.”

The riverfront brawl spawned a multitude of memes, jokes, parodies, reenactments and even T-shirts. “Lift every chair and swing,” read one shirt in a play on “ Lift Ev’ry Voice And Sing,” the late-19th century hymn sometimes referred to as the Black national anthem.

Another meme likened the co-captain’s toss of his hat into the air to sending the “bat signal,” a reference to the D.C. Comics character Batman. One image of the scene captured from bystander video was altered to imitate Marvel Comics’ Avengers characters assembling through magic portals on the dock to defend the Black co-captain.

Many observers on social media were quick to point out the significance of the city and location where the brawl took place. Montgomery was the first capital of the Confederacy and the riverfront is an area where enslaved people were once unloaded to be sold at auction. The area is a few blocks from the spot where Rosa Parks was arrested for disobeying bus segregation laws.

“Much of (the riverfront brawl reaction) is emblematic of the history of Montgomery,” said Timothy Welbeck, the director of the Center for Anti-Racism at Temple University in Philadelphia.

“This is the home of the bus boycott; this is the home of intense, racialized segregation and various forms of resistance today,” he said. “Even if there wasn’t an explicit mention of race, many people saw a white man assaulting a Black man as a proxy for some of the racist behavior that they’ve seen before. It brought about a sense of solidarity and unified fate, too, in this particular moment.”

Then there’s the lingering trauma of seeing past Black victims of violence and mob attacks suffer without help or intervention. Here was the rare event in which bystanders not only chronicled the moment but were able to intervene and help someone they saw being victimized.

In other notable instances, such as George Floyd’s murder by Minneapolis police, bystanders were restrained because the perpetrators were law enforcement officers. In a video of Floyd’s encounter with police filmed by Black bystander Darnella Frazier, people can be heard pleading for the Black man’s life as he gasped for air with a white officer’s knee held to his neck.

Physically intervening in Minneapolis would have invited arrests and placed the would-be rescuers at risk for harm themselves.

Historically, lynching victims were often taken from their families as the Black community had to stand by mutely. Emmett Till’s family members in Mississippi were haunted by their inability to stop the white men who kidnapped and killed him.

Bowder, the Montgomery artist, said the conversation needs to continue.

“I’m hoping for a hopeful message out of this,” she said.

Katrina Hazzard, a Rutgers University professor in the Department of Sociology, Anthropology and Criminal Justice, said she has seen that hopeful message in the comments of support that have crossed racial and ethnic lines in identifying the aggressors and the right for people to defend themselves and the crewman.

“That’s just been refreshing for me to see and for me to hear across the board,” she said.

Aisha I. Jefferson reported from Chicago and Aaron Morrison, who reported from New York, is a member of AP’s Race and Ethnicity team. AP reporter Gary Fields contributed from Washington, D.C.