BIRMINGHAM, Ala. (WIAT) — A three-judge panel held a hearing Wednesday concerning the case of Willie B. Smith, an intellectually disabled death row inmate scheduled for execution on Oct. 21.

Judges from the Eleventh Circuit Court of Appeals are considering whether to vacate a lower court ruling that dismissed Smith’s disability claim on technical grounds.

That claim states that prison officials violated Smith’s rights under the Americans with Disabilities Act when they did not provide him a reasonable accommodation to allow him to understand he had a 30-day period to opt into execution by nitrogen suffocation.

An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Execution through the use of nitrogen suffocation was approved by the Alabama Legislature in 2018. Oklahoma and Mississippi are the only other states that have authorized the use of the method.

Wednesday’s hearing comes after District Court Judge Emily Marks dismissed Smith’s claim on Sept. 24, saying that Smith lacked standing to make his claim.

Lawyers for Smith argued Marks’ ruling “conflates standing with merits.”

Judge Adalberto Jordan said he was “generally sympathetic” to that argument, which he said holds “a fair amount of force.”

Lawyers for Smith argued that until the lower court’s dismissal, the state had agreed that the death row inmate did have standing to make his claim. Judge Marks dismissed Smith’s claim despite any request from the state’s lawyers to do so.

Judge Charles R. Wilson pressed on that issue in the hearing, asking counsel for the state whether the lower court’s ruling was premature.

Edmund LaCour, who represented Alabama, said that Smith had been given sufficient notice to provide evidence regarding standing, a claim Smith’s lawyers dispute.

LaCour also argued that Smith had not clearly expressed that he would opt into nitrogen suffocation if given the chance to do so. Spencer Hahn, one of Smith’s lawyers, however, said that his client had done so. In an email to CBS 42, another member of Smith’s legal team reiterated Smith would opt into the new method if given a fair chance to do so.

“What we are requesting in the case is that Mr. Smith be allowed to elect nitrogen hypoxia as his method of execution,” the email said. “He would do so if given the opportunity, which is why we filed the lawsuit in the first place.”

Given that Smith’s execution is scheduled for Thursday, Oct. 21, his lawyers have asked that a decision in the case be expedited.