Breyer, J., dissenting
Am. J. Med. & Sci. 56, 56–59 (2015).
Tumors grow out of Bucklew’s lip and over his mouth, as well as on his hard and soft palates. One tumor also grows directly on Bucklew’s uvula, which has become “grossly enlarged” as a result. App. 225. (The uvula is the “pendent fleshy lobe” that hangs from the back of the throat. Merriam–Webster’s Collegiate Dictionary 1379 (11th ed. 2003).) Bucklew’s tumors obstruct his airway and make it difficult for him to breathe. His difficulty breathing is chronic, but is particularly acute when he lies flat and gravity pulls his engorged uvula into his airway. He often has to adjust the positioning of his head to prevent his uvula from obstructing his breathing. He sleeps at a 45-degree angle to facilitate breathing, and he often wakes up in the middle of the night gasping for air.
Due to the sensitivity of his tumors, even minimal contact may cause them to hemorrhage. He has described past hemorrhages as “‘squirting’” or “leaking” blood, and he states that the first thing he does each morning is to wipe the blood off his face that leaked from his nose and mouth as he slept. Bucklew’s condition is progressive and, due to the risk of significant blood loss caused by the sensitivity of his tumors, cannot be treated by surgery.
Bucklew maintains that, as a result of this medical condition, executing him by lethal injection would prove excruciatingly painful. In support of this claim, Bucklew submitted sworn declarations and deposition testimony from an expert witness, Dr. Joel Zivot, an anesthesiologist. Dr. Zivot provided extensive testimony regarding the pain that Bucklew would likely endure in an execution by lethal injection:
- Dr. Zivot testified that in light of “the degree to which Mr. Bucklew’s airway is compromised by the hemangiomas” and “the particular psychological and physical effects of lethal injection, it is highly likely that Mr.
