Alabama appeared before the U.S. Supreme Court on Thursday morning, asking the justices to allow Jeffery Lee to be executed as scheduled Thursday night.

Lower courts have barred the state from using nitrogen hypoxia to kill Lee, ruling that method—where a mask is placed over the prisoner’s face and he breathes in nitrogen until he blacks out and then dies from oxygen deprivation—is “probably unconstitutional.”

But Alabama’s solicitor general, A. Barrett Bowdre, told the justices that “the risk of ‘breathing difficulty or breathing discomfort’ from nitrogen hypoxia does not rise to the level of a severe pain that violates the Eighth Amendment’s ban on cruel and unusual punishment.”

The court rejected Alabama’s plea to allow the execution to go forward as planned in a short, unsigned order sent to reporters shortly after 9 p.m. EDT.

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As is often the case with orders on its emergency docket, the court did not explain its ruling.

Three of the justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—said they would have sided with the state.

Lee was convicted in the 1998 robbery and slayings of a pawn shop owner and employee.

At Lee’s trial, the jury recommended by a 7-5 vote that he be sentenced to life in prison without the possibility of parole, but the judge at Lee’s trial overrode that recommendation and sentenced Lee to death.

Lee last year challenged the state’s use of nitrogen hypoxia. U.S. District Judge Emily Marks rejected his Eighth Amendment claim, saying any discomfort in using nitrogen hypoxia does not violate the amendment.

She suggested that “executions presume a risk of some pain.”

On June 8, the U.S. Court of Appeals for the 11th Circuit reversed Marks’ decision and sent the case back for her to take another look.

It reasoned that “[t]here is … a substantial risk of serious harm” from nitrogen hypoxia because the use of that method, based on findings by the district court, will lead to “one to three minutes of ‘severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort.’”

“Such suffering,” the court of appeals concluded, “is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”

A day later, the district court found that a firing squad, which Lee proposed as an alternative method of execution, would be a safer alternative to nitrogen hypoxia because it results in a painless death.

Marks blocked the state’s use of nitrogen hypoxia to execute Lee, and the appeals court refused to stay the ruling.

Soon after, Alabama submitted a petition to the Supreme Court asking the justices to step in.

Bowdre argued that allowing the lower courts’ decisions to stand “would be unprecedented in American history. Not only does it portend the first-ever permanent ban on a legislatively enacted method” of execution, “but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment” by relying on the emotional distress that Lee alleges nitrogen hypoxia will cause.

In reality, the state stressed, any risks from nitrogen hypoxia “would amount to no more discomfort than that caused by other constitutional methods of execution.”

But even if the court of appeals were correct “that nitrogen hypoxia presents a substantial risk of harm,” Lee cannot show that the firing squad is the kind of readily available alternative required by the Supreme Court’s cases when challenging a method of execution.

Bowdre said the benefits of the firing squad are not “clear and considerable,” and it would be a difficult and time-consuming method of execution for the state to implement.

Lee’s lawyers asked the justices in a filing Thursday afternoon to deny the state’s request.

Thursday’s court order means Alabama won’t be able to move forward with Lee’s execution using nitrogen hypoxia.