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GLOSSIP v. GROSS SOTOMAYOR, J., dissenting

[petitioners’] claims regarding the inherent characteristics of midazolam.” Warner, 776 F. 3d, at 733. C The Court not only disregards this record evidence of midazolam’s inadequacy, but also fails to fully appreciate the procedural posture in which this case arises. Petition­ ers have not been accorded a full hearing on the merits of their claim. They were granted only an abbreviated evi­ dentiary proceeding that began less than three months after the State issued its amended execution protocol; they did not even have the opportunity to present rebuttal evidence after Dr. Evans testified. They sought a prelimi­ nary injunction, and thus were not required to prove their claim, but only to show that they were likely to succeed on the merits. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008); Hill v. McDonough, 547 U. S. 573, 584 (2006). Perhaps the State could prevail after a full hearing, though this would require more than Dr. Evans’ unsup­ ported testimony. At the preliminary injunction stage, however, petitioners presented compelling evidence sug­ gesting that midazolam will not work as the State intends. The State, by contrast, offered absolutely no contrary evidence worth crediting. Petitioners are thus at the very least likely to prove that, due to midazolam’s inherent deficiencies, there is a constitutionally intolerable risk that they will be awake, yet unable to move, while chemi­ cals known to cause “excruciating pain” course through their veins. Baze, 553 U. S., at 71 (Stevens, J., concurring in judgment). III The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is fac­ tually wrong. The Court’s conclusion that petitioners’