[135 NJSuper Page 51] The facts in the instant case are not disputed and are as follows: Plaintiff Judith Ponter and defendant John Ponter are married but have been living separate and apart since 1969. During the period they co-habited three children were born. Judith is due to give birth to another child fathered by someone other than her husband. She has unilaterally decided that she no longer desires to utilize
her capacity to procreate and wishes to effectuate this end by the means of sterilization.
Throughout the term of her present pregnancy and for some ten years preceding it, Judith Ponter has received obstetrical and gynecological care from Drs. R. P. Gotchel, R. Kessler, R. A. Rodgers, Jr., and J. P. Burns, all being affiliates of Westwood Obstetrical and Gynecological Associates, P.A. These individual doctors and the professional association are also plaintiffs herein. Judith Ponter planned to have one of these doctors perform the sterilization within one day subsequent to the delivery of her expected child. Such an operation can be performed most economically and efficiently within the time period. However, the doctors will not perform such an operation unless Judith obtains the consent of her husband John Ponter, which she is unable to procure.
Plaintiff doctors, as well as other doctors engaged in similar practices through the State, require spousal consent prior to the performance of sterilization operations. By this means the doctors seek to protect themselves against potential civil liability which might arise at the behest of the nonconsenting spouse. In light of the fact that there has never been a declaration as to the law in New Jersey on this point, such a precaution is not without basis.
In this action Judith Ponter seeks to have this court determine whether a married woman has a constitutional right to be sterilized without spousal consent. The doctors and professional association further seek to enjoin John Ponter from instituting any action against them for the performance of the operation without his consent.
Plaintiffs' action is based in large measure on the theory of law established in the landmark cases of Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). These cases establish a new era in women's continuing struggle for the establishment of their individual rights.
In Bolton and Wade the Supreme Court dealt with the issue of a woman's right to an abortion. It held that at least in the first trimester of a pregnancy such a right emanates from the Bill of Rights and is protected against unwarranted state interference by the Fourteenth Amendment. The court further established that within that term only state restrictions which were related to the state's interest in "safeguarding health, in maintaining medical standards and in protecting potential life" Roe v. Wade, supra 410 U.S. at 154, 93 S. Ct. at 727, would pass constitutional muster. The decision for or against the operation is left to the woman and her doctor alone.
The precedent established by Bolton and Wade, although controversial from the moralists' and theologians' viewpoint, is required to be followed by all lower courts. The Supreme Court by these decisions sanctioned the ideology that a woman has a right in most circumstances to control her reproductive functions. Indeed, the ideology was raised from the "bandwagon" of various women's rights movements to constitutional proportions.
Having thus established the major thesis which binds all courts, we now must look to the application of this theory as delineated and expanded by other courts.
Other courts following Bolton and Wade, have struck down state statutes requiring spousal or parental consent in abortion situations. The courts have consistently held that such a requirement falls within the proscription set up by Wade against restricting the availability of abortions based on other than health related considerations. Doe v. Doe, 314 N.E. 2d 128 (Mass. 1974); Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla. 1973); Jones v. Smith, 278 So. 2d 339 (Fla. App. 1973), cert. denied 415 U.S. 958, 94 S. Ct. 1486, 39 L. Ed. 2d 573 (1974).
An examination of the abortion related decisions reveals that a hierarchy of rights is evolving which includes the rights of the mother, the rights of the father and the rights of the fetus. ...